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CASES 


ON  THE 


LAW  OF  TORTS 


SELECTED  AND  ANNOTATED 


By 
FRANCIS  n.  BOIILEN 

Professor  of  Law,    University  of  Pennsylvania 


IN  TWO  VOLUMES 
VOLUME  II 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 


Copyright  1915 

BY 

THE  BOBBS-MERRILL  COMPANY. 


BOOK  III. 

JUSTIFICATIONS,  EXCUSES  AND  DEFENSES. 


Part 


I. 


iDefense  of  Person  or  Property  and  the  Assertion 
of  Right  in  Respect  Thereto. 


CHAPTER  I. 

Self-Defense. 


(a)     Defense  of  one's  person  from  wrongful  violence. 


CHAPLEYN  OF  GREYE'S  INNE  v. 


Court  of  Exchequer,  1400.    Y.  B.  2  Henry  IV,  8,  pi.  40. 

In  an  inquest  by  a  chaplain  of  Greye's  Inne  for  a  battery  done  to 
him,  etc.  And  the  defendants  had  justified  that  the  wrong  which 
the  plaintiff  had  was  from  his  own  assault.  Markliam.  Although 
a  man  make  an  assault  upon  another,  if  he  upon  whom  the  assault 
is  made  can  escape  with  his  life,  it  is  not  lawful  for  him  to  beat  the 
other,  who  made  the  assault,  quod  tota  curia  concessit.  Cockayn, 
C.  B.  But  I  am  not  bound  to  wait  till  the  other  has  given  a  blow, 
for  perhaps  it  will  come  too  late  afterwards,  quod  conceditur.^ 

^As  late  as  1319  it  had  been  held  in  a  plea  of  trespass  for  a  battery  that 
the  plaintiff  should  recover  his  damages,  and  the  defendant  go  to  prison, 
though  the  beating  given  the  plaintiff  "was  because  of  his  own  assault,  since 
the  defendant  could  not  otherwise  escape,"  Y.  B.  12,  Ed.  II,  381  (Rolls  Ed.). 
See  also,  accord  Y.  B.  21  &  22,  Ed.  I,  586  (1294). 

In  Anon.,  Y.  B.  33  Henry  VI,  18,  pi.  10  (1455),  it  is  held  that  son  assauli 
demesne  is  no  plea  to  threats,  unless  the  defendant  has  no  other  means  of 
escape. 

So  late  as  1532,  a  statute,  24  Hen.  8,  c.  5,  providing  that  "a  man  killing 
a  thief  in  self-defense  shall  not  forfeit  his  goods"  contains  words  indicating 
that  many  killings  in  self-defense  did  even  then  involve  forfeiture  of  goods. 
It  is  probable  that  at  a  very  early  period  one  killing  another  in  self-defense 
might  purchase  his  pardon  from  the  king  and  it  is  highly  doubtful  whether 
this  pardon  was  ever  refused,  none  the  less  it  was  required,  nor  probably 
did  it,  when  obtained,  protect  the  slayer  from  suit  by  the  dead  man's  kin.  It 
is  certain  that  a  pardon  for  killing  by  misadventure  did  not,  and  the  two  are 
treated  throughout  as  governed  by  the  same  principles,  as  in  the  Statute  of 
Gloucester  (1278),  in  which  it  was  provided  that  one  killing  another  "must 
put  himself  upon  the  country"  and  if  the  jurors  find  the  killing  to  be  bv 
misadventure  or  in  self-defense,  "there  on  the  report  of  the  justices  the  king 

891 

671049 


892  IOWA   t'.    EVEXSON. 

STATE  OF  IOWA  v.  EVENSON. 
Supreme  Court  of  Iowa,  1904.     12.2  Iowa  Reports,  88. 

Bishop,  J.  On  the  evening  of  December  15,  1902,  the  defend- 
ant, his  brother,  and  two  other  young  men  were  together  on  a  side 
street  of  the  town  of  Joice,  in  Worth  county.  They  had  been  drink- 
ing intoxicating  hquor,  had  indulged  in  much  profane  and  obscene 
language,  and  there  had  been  some  fighting  between  them.  After 
the  fight  was  over,  they  moved  to  the  main  street  of  the  town,  where 
they  stopped  in  front  of  a  store.  Here  they  continued  their  loud 
and  boisterous  talk,  the  same  being  more  or  less  interspersed  with 
profanity.  In  this  situation  a  crowd  of  about  a  dozen  citizens  ap- 
peared on  the  scene,  armed  with  horsewhips,  and  some  of  them  an- 
nounced to  defendant  and  his  companions  that  they  would  give 
them  five  minutes  to  get  out  of  town.  The  defendant  responded 
that  "if  they  did  not  leave  him  alone  he  would  lay  some  one  cold."' 
The  citizens  at  once  began  using  their  whips  on  defendant  and  his 
companions,  and  when  the  whips  were  used  up  they  resorted  to  their 
fists,  one  of  the  number  also  making  use  of  a  piece  of  board.  De- 
fendant and  his  companions  were  forced  back  up  the  street  by  the 
onslaught  made  upon  them,  defending  themselves  meanwhile  by 
the  use  of  their  fists.  As  they  passed  a  platform  scale  standing  on 
the  sidewalk,  defendant  took  therefrom  the  weight  hanger,  and, 
SAvinging  it  around  his  head,  told  the  crowd  to  keep  back.  At  this 
juncture  one  of  the  citizens,  named  Bilstead,  seized  the  brother  of 
the  defendant  about  the  body,  and  the  two  began  to  struggle,  when 
defendant  stepped  up  and  struck  Bilstead  with  the  hanger,  the  blow 
being  sufficient  to  fell  Bilstead  to  the  walk. 

The  court,  on  its  own  motion,  gave  an  instruction  to  the  jury 
as  follows :  "The  inhabitants  of  Joice  had  no  right  to  drive  the  de- 
fendant and  his  party  out  of  town  by  the  use  of  force  merely  be- 
cause they  were  fighting  or  using  bad  language  in  the  streets.  If 
the  defendant  and  his  party  had  committed  or  were  committing  any 
public  offense,  the  remedy  which  the  law  gave  the  inhabitants  of 
Joice  was  to  arrest  them,  and  take  them  before  a  magistrate  or  peace 
officer.    On  the  other  hand,  if  the  defendant  and  his  party  had  rea- 

shall  pardon  if  he  will,"  see  as  to  this  subject  Pollock  and  Alaitland,  History 
of  the  English  Law,  Vol.  II,  476-481 ;  Stephen,  History  of  the  Criminal  Law, 
Vol.  HI,  pp.  36-40,  and  Robert's  Case,  Seldon  Soc,  Vol.  I,  Pleas  of  the 
Crown  70  (1203),  Y.  B.  21  Ed.  HI,  17  pi.  22  (1348)  and  Fitz-Herbert  Abr. 
Corone,  284  (1330).  It  is  curious  that  though  Blackstone  recognizes  that 
homicide  in  self-defense  was  excusable  rather  than  justifiable  and  cites  the 
act  of  24  Hen.  VlII,  supra,  Vol.  IV,  p.  184,  he  none  the  less  speaks  of  self- 
defense  as  being  "the  primary  law  of  nature"  which  "is  not,  neither  can  be, 
in  fact  taken  away  by  the  law  of  society,"  Vol.  HI,  4.  His  influence  is  shown 
in  many  statements  of  the  earlier  American  judges  such  as  the  following 
extract  from  the  opinion  of  Wheeler,  J.  in  Lander  v.  State,  12  Tex.  462 
(1854),  "It  (self-defense)  does  not  depend  on  any  law  of  society.  It  is  de- 
rived from  a  higher  source,  is  coeval  with  man's  natural  being,  and  hence  it 
is  with  truth  and  reason  said  that  self-preservation  is  the  first  law  of  nature"; 
compare  Grotius  "De  Jure  Belli  et  Pads",  Lib.  Ill,  Cap.  I. 


IOWA   V.    EVENSON.  893 

sonable  opportunity  to  leave  the  scene  in  safety  and  avoid  a.  con- 
flict with  the  town  people  when  they  approached  with  whips  and 
threatened  the  use  of  force,  then  the  defendant  and  his  party  should 
have  taken  that  course,  and  avoided  a  conflict.  But  if  the  town 
people  assailed  the  defendant  and  his  party,  so  that  they  had  no 
reasonable  opportunity,  after  their  intentions  were  known,  to  retire 
or  retreat  in  safety,  then  they  had  the  right  to  meet  force  with  force, 
and  defend  themselves  as  in  the  case  of  any  other  assault."  This 
instruction  is  complained  of  as  error,  the  contention  of  counsel  for 
appellant  being  that  under  the  law  the  defendant,  when  threatened 
with  an  assault  and  battery,  was  not  bound  to  retreat,  but  might 
stand  his  ground,  and  repel  force  with  force,  so  long  as  he  used  only 
such  force  as  was  necessary.  We  think  the  doctrine  thus  contended 
for  is  sound.  As  applied  to  circumstances  such  as  this  record  dis- 
closes, we  do  not  understand  it  to  be  the  law  that  one  thus  made  the 
subject  of  attack  is  bound  to  retreat  if  there  be  time  and  opportunity 
to  do  so.  In  effect,  the  language  of  the  instruction  condemned  was 
equivalent  to  saying  to  the  jury  that  when  one  is  assaulted,  and  the 
character  thereof  does  not  involve  life  or  great  bodily  injury,  the 
person  assaulted,  if  he  does  not  choose  to  stand  and  submit  to  a 
battery,  must  retreat  if  any  way  is  open  to  him.  Such  is  not  the  law. 
See,  also,  Gallagher  v.  State,  3  Minn.  270 ;  Com.  v.  Drum,  58  Pa. 
21 ;  State  v.  Bartlett,  170  Mo.  Sup.  658  (71  S.  W.  Rep.  148,  59  L.  R. 
A.  756)  ;  State  v.  King,  104  Iowa,  724;  McClain's  Criminal  Law. 
We  do  not  overlook  the  many  cases  wherein  it  is  held  that  one  may 
not,  under  the  plea  of  self-defense,  justify  the  taking  of  human  life, 
if  it  reasonably  appears  that  the  same  could  have  been  avoided  by 
making  use  of  an  avenue  of  escape  open  to  him.^  But  the  prin- 
ciple thus  declared  upon  has  no  application  to  a  case  where,  as  in 
the  case  at  bar,  one  is  wrongfully  assaulted,  and  repels  force  by  the 

*See  Dupree  C.  J.  in  State  v.  Sherman,  \6  R.  I.  631  (1889),  generally 
a  person  wrongfully  assailed  cannot  justify  killing  his  assailant  in  mere  self- 
defense,  if  he  can  safely  avoid  it  by  retreating.  Retreat  is  not  always  obli- 
gatory even  to  avoid  killing;  for  if  attack  be  made  with  deadly  weapons  or 
murderous  or  felonious  intent,  the  assailed  may  stand  his  ground  and  if  need 
be  kill  his  assailant.  Commonwealth  V.  Drum,  58  Pa.  St.  1  (1868)  ;  Page  v. 
State,  141  Ind.  236  (1894),  and  see  Professor  J.  H.  Beale,  Homicide  in  Self- 
Defense,  3  Col.  L.  R.  526,  pp.  537-545,  and  16  Harv.  L.  R.  567,  and  the  valu- 
able note  to  the  case  State  v.  Gardner,  2  L.  R.  A.  (N.  S.)  51  ef  seq. 

In  Moran  V.  Vicroy,  24  Ky.  L.  2415  (1903),  where  the  defendant  shot 
the  plaintiff,  who  had  stepped  towards  him  and  raised  and  cocked  his  gun, 
it  was  held  that  the  instiuclion  asked,  "that  the  defendant  could  only  shoot  if 
he  had  no  apparently  safe  means  of  escape  from  the  impending  danger,"  had 
been  frequently  condemned  by  the  Supreme  Court  of  Kentucky.  The  right 
to  kill  without  retreating  if  attacked  in  one's  own  house  is  clear,  People  V. 
Lewis,  117  Cal.  186  (1897).  and  see  note  to  State  v.  u'ardner,  2  L.  R.  A. 
(N.  S.)  51.  "If  a  man  is  in  his  house,  and  hears  that  such  a  one  is  coming 
to  his  house  to  beat  him,  he  may  well  collect  his  friends  and  neighbors  to 
help  him  in  the  defense  of  his  person.  But  if  one  threatens  to  beat  him  if 
he  goes  to  such  a  market  or  such  other  place,  he  may  not  lawfully  collect 
his  friends  to  protect  him  while  going  thither,  because  it  is  not  necessary 
for  him  to  go,  and  he  may  have  his  remedy  by  a  bond  to  keep  the  peace. 
But  one's  house  is  his  castle  and  defense  where  he  may  properly  abide." — 
Note  by  Fineux  C.  J.,  Anon.,  Y.  B.  21,  Henry  VII,  39,  pi.  50  (1505). 


894  GERMOLUS   V.    SAUSSER. 

use  of  like  force.  In  the  one  case  the  law  regards  the  liberty  of  the 
citizen  to  come  and  go  as  he  pleases  without  molestation,  save  at  the 
hands  of  the  law,  as  the  thing  paramount.  In  the  other  case  the 
law  regards  the  temporary  deprivation  of  the  exercise  of  personal 
liberty  on  the  part  of  one  citizen  as  of  less  importance  than  is  the 
life  of  another  citizen,  and  this  even  though  the  latter  is  for  the 
moment  engaged  in  making  an  unlawful  assault  upon  the  former. 
Hence  the  injunction  that  a  person  assaulted  must  retreat,  if  he  can 
do  so  in  reasonable  safety,  before  resorting  to  the  extreme  measure 
of  taking  the  life  of  his  assailant. 

Conceding,  therefore,  that  the  provocation  for  the  assault  upon 
defendant  was  great,  still,  being  wrongful,  and  the  defendant  having 
the  right  to  resist  in  defense  of  himself  and  of  his  brother,  it  fol- 
lows that  the  instruction  given  cannot  be  upheld. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new 
trial. 

Reversed.- 


GERMOLUS  V.  SAUSSER. 
Supreme  Court  of  Minnesota,  1901.     83  Minn.  Rep.  141. 

Start,  C.  J.  Action  to  recover  damages  for  personal  injuries 
sustained  by  the  plaintiff  by  reason  of  an  assault  and  battery  perpe- 
trated upon  him  November  21,  1899,  by  the  defendant.  The  de- 
fense was  that  the  act  was  done  in  self-defense.  Verdict  for  the 
plaintiff  for  $1,100,  and  the  defendant  appealed  from  an  order  de- 
nying his  motion  for  a  new  trial. 

All  of  the  assignments  of  error,  which  are  well  assigned,  re- 
late to  exceptions  to  the  charge  of  the  trial  court  to  the  jury.  The 
evidence  on  the  part  of  the  plaintiff  tended  to  show  that  the  defend- 
ant made  an  unprovoked  assault  upon  him,  and  struck  him  over 
the  head  with  the  heavy  end  of  a  whip  stock,  whereby  the  plaintiff 
was  knocked  senseless,  and  sustained  serious  injuries.  The  evi- 
dence also  tends  to  show  that  there  had  been  some  words  between 
the  parties  growing  out  of  the  fact  that  the  plaintiff,  who  had  been 
ploughing  a  field  lying  along  the  highway,  had  ploughed  within  the 
limits  of  the  highway.  The  plaintiff  had  stopped  his  team,  and  was 
standing  by  the  side  of  his  plough,  some  ten  rods  from  the  highway, 
when  the  defendant  struck  him.  The  defendant's  own  testimony 
w^as  to  this  effect : 


^  See  accord:  State  v.  Sherman,  16  R.  I.  631  (1889);  Comvionwealth  v. 
Drum,  58  Pa.  St.  1  (1868)  ;  Page  v.  State,  141  Ind.  236  (1894)  ;  Runyan  v. 
Slate,  57  Ind.  80  (1877)  ;  Moran  v.  Vicroy,  24  Ky.  L.  2415  (1903).  These 
are  all  criminal  cases,  but  the  principles  governing  the  right  of  self-defense 
are  the  same  in  both  criminal  and  civil  actions,  Thomason  v.  Gray,  82  Ala. 
291   (1886). 

Contra:  Howland  v.  Day,  56  Vt.  318  (1883)  ;  Armstrong  v.  Little,  4  Pen- 
new.  255  (Del.  1903)  ;  Woodruff  J.  in  Keyes  v.  Devlin.  3  E.  D.  Smith  518 
(N.  Y.  1854),  p.  524,  and  see  Morton  J.  in  Monise  v.  Begaso,  190  Mas;  87 
(1906),  pp.  88-89. 


GERMOLUS   V.    SAUSSER.  895 

He  (plaintiff)  was  ploughing  and  when  he  saw  me  driving 
on  the  highway  he  stopped  his  team,  and  called  to  me  to  come  over, 
and  repeated  the  call  seven  or  eight  times.  I  stopped  my  team,  and 
asked  him  what  he  wanted.  He  said,  "Come  over  this  way."  I  got 
off  the  wagon,  took  my  coat  off,  as  it  was  too  heavy  (this  was 
November  21st),  and  went  over  to  the  plaintiff,  and  asked  him  what 
he  was  calling  to  me  for ;  and  he  swung  his  whip  around  hitting 
me  on  the  arm,  and  I  jerked  it  out  of  his  hand,  and  hit  him  with  it, 
and  then  he  let  himself  drop.  I  had  to  hit  him  to  protect  myself. 
T  had  the  whip  near  the  stock,  and  I  swung  it  over  and  gave  it  to 
him. 

The  trial  court  gave  to  the  jury,  with  others,  the  instructions 
following : 

"Now,  in  this  case,  you  are  to  consider,  in  the  first  place,  wheth- 
er any  element  of  self-defense  enters  into  it.  According  to  the 
testimony  of  the  defendant  himself,  even  if  that  were  true,  that 
the  plaintiff  struck  at  him  with  a  whip  stock,  was  it  then  necessary 
for  him,  to  defend  himself,  to  jerk  it  out  of  the  plaintiff's  hands, 
and  then  strike  the  plaintiff  with  it?  He  was  only  justified  in  doing 
that  if  it  was  necessary  for  his  own  protection,  in  his  own  self- 
defense." 

"There  is  no  full  defense  made  out  in  this  case,  unless  the  de- 
fendant has  established  by  a  preponderance  of  the  evidence  that 
the  battery  committed  upon  the  plaintiff,  as  admitted,  was  necessary 
for  his  own  self-protection,  and  to  prevent  the  plaintiff  from  further 
battering  him." 

It  is  the  contention  of  the  defendant  that  the  first  two  instruc- 
tions given  were  erroneous,  in  that  they,  in  effect,  made  his  right 
of  self-defense  depend  upon  an  actual  necessity  for  the  use  of  force 
in  order  to  protect  himself,  instead  of  upon  the  then  apparent  ne- 
cessity of  the  situation,  and  withdrew  from  the  jury  the  considera- 
tion of  the  question  whether  at  the  time  the  defendant  entertained 
an  honest  and  reasonable  belief  that  it  was  necessary  to  use  the 
force  which  he  did  use  in  order  to  protect  himself.  The  rule  as  to 
self-defense  is  the  same  in  civil  and  criminal  actions.  The  rule  is 
this :  An  act,  otherwise  criminal,  is  justifiable  when  it  is  done  to 
protect  the  person  committing  it,  or  another  whom  he  is  bound  to 
protect,  from  imminent  personal  injury,  the  act  appearing  reason- 
ably necessary  to  prevent  the  injury,  nothing  more  being  done  than 
is  reasonably  necessary.  G.  S.  1894,  §  6308.  This  does  not  require 
that  the  necessity  for  doing  the  act  must  be  actual ;  for  it  is  sufficient 
if  there  is  either  a  real  or  apparent  necessity  for  so  doing.^  But 
the  mere  belief  of  a  person  that  it  is  necessary  to  use  force  to  pre- 
vent an  injury  to  himself  is  not  alone  sufficient  to  make  out  a  case 
of  self-defense,  for  the  facts  as  they  appear  to  him  at  the  time  must 
be  such  as  reasonably  to  justify  such  belief.^ 

^Shorter  v.  People,  2  N.  Y.  193  (1849);  Goodall  v.  State,  1  Ore.  333 
(1861)  ;  Murrav  v.  Commonwealth,  79  Pa.  St.  311  (1875)  ;  Enright  v.  PcoHc, 
155  111.  32  (1895). 

^Accord:  Beck  v.  Minn.  Union  R.  Co.,  95  ]\Iinn.  73  (1905)  ;  New  Orleans 


896  MORRIS  V.   PLATT. 

It  follows  that  the  instructions  in  this  case  were  not  strictly 
accurate,  but  the  error  was  without  prejudice;  for,  upon  the  de- 
fendant's own  testimony,  we  hold  as  a  matter  of  law  that  he  was  not 
justified  in  beating  the  plaintiff.  To  hold  otherwise  would  be  a  re- 
proach to  the  administration  of  justice;  for,  accepting  the  defend- 
ant's own  statement  of  what  occurred,  there  was  neither  a  real  nor 
an  apparent  necessity  for  knocking  the  plaintiff  down  after  he  had 
been  disarmed.  Nor  were  the  facts,  viewed  from  any  standpoint, 
such  as  reasonably  to  justify  the  defendant  in  believing  that  there 
was  any  such  necessity. 

Order  affirmed. 


MORRIS  V.  PLATT. 
Supreme  Court  of  Errors,  Connecticut,  1864.    32  Conn.  Rep.,  75. 

Butler,  J.  It  appears  from  the  evidence  offered  on  the  trial 
that  the  defendant  wounded  the  plaintiff  in  two  places  by  two  shots 
fired  from  a  pistol ;  and  from  the  nature  of  the  weapon,  and  the 
other  conceded  circumstances,  the  jury  were  authorized  to  find,  and 
doubtless  did  find,  that  the  wounds  were  inflicted  with  a  design  to 
take  the  life  of  the  plaintiff.     It  was  incumbent  on  the  defendant 

&  N.  E.  R.  Co.  V.  J  opes,  142  U.  S.  18  (1891)  ;  Higgins  v.  Minaghan,  78  Wis. 
602  (1891),  p.  610;  Baker  v.  Gausin,  76  Ind.  317. 

In  State  V.  Bryson,  2  Winston  86  (N.  Car.  1864),  Manly  J.  says,  "A  right 
to  act  in  self-defense  does  not  depend  upon  the  special  state  of  mind  of  the 
subject  of  inquiry.  He  is  judged  by  the  rules  which  are  applicable  to  men 
whose  nerves  are  in  an  ordinarily  sound  and  healthy  state ;  and  whatever 
may  be  his  personal  apprehension,  if  he  has  not  reasonable  ground  to  support 
thcni,  he  will  not  be  protected  by  the  principle  of  self-defense.  The  normal 
condition  of  the  human  passions  and  faculties  must  be  regarded  in  establish- 
ing rules  for  the  government  of  human  conduct.  The  question,  then,  in  such 
cases  as  the  present,  is  not  what  were  the  apprehensions  of  the  defendant, 
but  what  these  ought  to  have  been,  when  measured  by  a  standard  derived 
from  observation  of  men  of  ordinary  firmness  and  reflection."  But  see  Pat- 
terson V.  Standling,  91  111.  App.  671  (1900),  where  it  was  held  that  it  was 
error  to  instruct  the  jury  that  the  circumstances  must  be  such  as  to  induce 
the  mind  of  a  courageous  man  to  believe  that  he  must  strike  to  defend  hirn- 
self,  it  being  only  required  that  they  are  sufficient  to  induce  such  a  belief  in 
the  mind  of  a  reasonably  prudent  man. 

The  fear  which  will  justify  the  use  of  force  in  self-defense  must  be  the 
fear  of  imminent  danger  unless  the  blow  be  struck.  One  is  not  justified  in 
shooting  on  sight  a  person  who  has  threatened  to  kill  him  even  though  he 
has  good  reason  to  believe  that  an  effort  will  be  made  to  carry  the  threat 
into  execution  at  some  future  time,  Rippy  v.  State,  2  Head  217  (Tenn.  1858)  ; 
Lander  v.  State,  12  Tex.  462  (1854)  ;  but  see  Bohannoii  v.  Commonwealth, 
8  Bush  481  (Ky.  1871)  ;  and  this  is  so  though  the  person  assaulted  is  at  the 
time  of  the  assault  armed,  Hulse  v.  Tollman,  49  111.  App.  490  (1853).  There 
must  be  something  done  by  the  person  assaulted  apparently  indicating  an 
attempt  to  attack  the  defendant,  or,  where  there  are  threats,  demonstrations 
appropriate  to  carry  such  threats  into  execution,  Stoneman  V.  Commonwealth, 
25  Gratt.  887  (Va.  1874).  Threats  known  to  the  defendant,  however,  are  im- 
portant, as  determining  whether  he  is  justified  in  believing  the  conduct  of 
the  person  assailed  was  an  attempt  or  demonstration.  State  v.  Evans,  65  Mo. 
574  (1877).  Where  there  are  antecedent  threats  or  where  the  circumstances 
are  such  as  to  indicate  an  apparent  intent  on  the  part  of  the  person  assailed 


MORRIS    v.    PLATT.  897 

to  justify  or  excuse  their  infliction.  He  in  the  first  place  attempted 
to  justify  them,  and  the  obvious  attempt  to  take  life  which  aggra- 
\  ated  them,  by  offering  evidence  to  prove  that  he  was  assailed  by 
the  plaintiff  and  others  in  a  manner  which  indicated  a  design  to  take 
his  life,  and  "that  he  was  in  great  bodily  peril  and  in  danger  of  losing 
his  life  by  means  of  the  attack,"  and  that  he  fired  the  pistol  "to  pro- 
tect his  Hfe  and  his  body  from  extreme  bodily  injury."  If  these 
facts  were  proved  and  found  true,  they  fully  justified  the  attempt 
of  the  defendant  to  take  the  life  of  the  plaintiff  as  matter  of  law, 
and  entitled  the  defendant  to  a  verdict  in  his  favor.  And  so  the 
court  were  bound  to  tell  the  jury,  if  properly  requested  to  do  so  by 
the  defendant. 

The  plaintiff,  in  answer  to  the  defense  made,  denied  that  he  was 
an  assailant,  and  claimed  that  he  was  a  bystander  merely,  and  re- 
quested the  court  to  charge  the  jury,  in  substance,  that  if  they  so 
found,  he  was  entitled  to  recover,  although  they  should  also  find 
the  defendant  to  have  been  lawfully  defending  himself  against  his 
assailants,  and  the  injury  to  the  plaintiff'  accidental.  That  request 
of  the  plaintiff  embodies  the  unqualified  proposition  that  a  man 
lawfully  exercising  the  right  of  self-defense,  is  liable  ta  third  persons 
for  any  and  all  unintentional,  accidental  injurious  consequences 
which  may  happen  to  them,  and  the  court  so  charged  the  jury.  Al- 
though there  are  one  or  two  old  cases  and  some  dicta  which  seem  to 
sustain  it,  that  proposition  is  not  law. 

It  is  well  settled  in  this  court  that  a  man  is  not  liable,  in  an  action 
of  trespass  on  the  case,  for  any  unintentional  consequential  injury 
resulting  from  a  lawful  act,  where  neither  negligence  nor  folly  can 
be  imputed  to  him,  and  that  the  burden  of  proving  the  neghgence 
or  folly,  v/here  the  act  is  lawful,  is  upon  the  plaintiff.  Burroughs 
V.  Housatonic  R.  R.  Co.,  15  Conn.  124.  Is  the  rule  different  in  tres- 
pass, where  the  injury  is  the  immediate  and  direct,  though  unde- 
signed and  accidental,  result  of  a  lawful  act? 

If  the  defendant  had  been  in  the  act  of  firing  the  pistol  at  an 
assailant  in  lawful  self-defense,  and  a  flash  of  lightning  had  blinded 
him  at  the  instant  and  diverted  his  aim,  or  an  earthquake  had  shaken 
him  and  produced  the  same  result,  or  if  his  aim  was  perfect  but  a 
sudden  puff  of  wind  had  diverted  it  or  the  ball  after  it  had  passed 
from  the  pistol,  and  in  either  case  the  ball  by  reason  of  the  diversion 
had  hit  the  plaintiff,  the  accident  would  have  been  so  eft'ected  in 
part  by  the  uncontrollable  and  unexpected  operations  of  nature 
as  to  be  inevitable  or  absolutely  unavoidable ;  and  there  is  no  prin- 
ciple or  authority  which  would  authorize  a  recovery  by  the  plaintiff'. 

And,  in  the  second  place,  if  while  in  the  act  of  firing  the  pistol 
lawfully  at  an  assailant,  the  defendant  was  stricken,  or  the  pistol 


to  assault  tHe  defendant,  sucK  equivocal  conduct  as  putting  the  hand  in  the 
pocket.  Keep  v.  Quallman,  68  Wis.  451  (1887)  ;  or  upon  the  hip,  Conrvoisier 
V.  Raymond,  23  Colo.  113  (1896)  ;  or  a  sudden  onrush  of  a  person  beheved 
to  be  one  who  had  previous!}'  threatened  violence,  Crabtree  v.  Dawson,  119 
Ky.  148  (1904),  have  been  held  sufficient  to  justify  a  reasonable  beHef  that 
the  defendant  was  in  imminent  danger. 


898  MORRIS   V.    PLATT. 

seized  or  stricken  by  another  assailant,  so  that  its  aim  was  unex- 
pectedly and  uncontrollably  diverted  towards  the  plaintiff;  or  if 
while  in  the  act  of  firing  with  a  correct  aim,  the  assailant  suddenly 
and  unexpectedly  stepped  aside,  and  the  ball  passing  over  the  spot 
hit  the  plaintiff,  who  till  then  was  invisible  and  his  presence  un- 
known to  the  defendant ;  or  if  the  pistol  was  fired  in  other  respects 
with  all  the  care  which  the  exigencies  of  the  case  required  or  the 
circumstances  permitted,  the  accident  was  what  has  been  correctly 
termed  "unavoidable  under  the  circumstances,"  and  whether  the  de- 
fendant should  in  such  case  be  hoiden  liable  or  not  is  the  question 
we  have  in  hand.  For,  in  the  third  place,  if  the  act  of  firing  the 
pistol  was  not  lawful  or  was  an  act  which  the  defendant  was  not 
required  by  any  necessity  or  duty  to  perform,  and  was  attended 
by  possible  danger  to  third  persons  which  required  of  him  more 
than  ordinary  circumspection  and  care,  as  if  he  had  been  firing  at 
a  mark  merely ;  or  if  the  act  though  strictly  lawful  and  necessary 
was  done  with  wantonness,  negligence  or  folly,  then,  although  the 
wounding  was  unintentional  and  accidental,  it  is  conceded,  and  un- 
doubtedly true,  that  the  defendant  would  be  liable. 

In  this  case  the  rule  of  law  claimed  by  the  plaintiff,  and  given 
by  the  court  to  the  jury,  authorized  them  to  find  a  verdict  for  the 
plaintiff  if  they  found  the  accident  to  belong  to  the  secona  class, 
and  to  have  been  "unavoidable  under  the  circumstances."  We  have 
seen  that  if  the  injur}'-  had  been  consequential  and  the  form  of 
action  case,  the  defendant  would  not  have  been  liable,  and  the  ques- 
tion returns,  whether  he  can  and  should  be  bolden  liable  because 
the  injury  was  direct  and  immediate  and  the  form  of  action  is  tres- 
pass. I  think  not,  whether  the  decision  of  the  question  be  made 
upon  principle  or  governed  by  authority. 

We  advise  that  a  new  trial  be  granted. 

In  this  opinion  the  other  judges  concurred. 

"^Accord:  Paxton  v.  Boyer,  67  111.  132  (1873).  So  where  the  defendant 
intentionally  strikes  the  plaintiff  believing  him  to  be  a  third  person  from 
whom  he  has  such  reason  to  apprehend  danger  as  to  justify  striking  in  self 
defense,  he  is  not  liable  for  the  mistake  in  identity  so  long  as  his  belief  was 
honest  and  justifiable  under  the  circumstances,  Leavetfs  Case  {circa  1639) 
cited  in  Cook's  Case  Cro.  Car.  538.  The  burden  of  proving  that  the  mistake 
was  negligent  lies  upon  the  plaintiff,  Courvoisier  v.  Raymond,  23  Colo.  113 
(1896),  a  riotous  gang  had  broken  into  the  defendant's  house  and  having  been 
expelled  by  him  continued  throwing  stones,  etc.,  at  it,  the  plaintiff,  a  police 
officer,  coming  upon  the  scene  came  towards  the  defendant,  the  defendant 
testified  that  as  the  plaintiff  approached  he  put  his  hand  to  his  hip  pocket 
the  defendant  thereupon  shot  him,  thinking  that  he  was  one  of  the  riotous 
gang:  in  Crabtree  v.  Dawson,  119  Ky.  148  (1904),  the  defendant  had  ejected 
an  intoxicated  man  from  a  room  in  his  building  in  which  a  pay  dance  was 
given,  the  intruder  threatened  to  return  and  "clean  out  the  whole  thing,"  the 
plaintiff',  Avho  had  been  invited  to  attend  a  dance  given  by  the  defendant's 
daughter  and  others  in  an  adjacent  room,  for  that  purpose  came  up  the  stairs 
which  were  dimly  lighted,  the  defendant  mistaking  him  for  the  intruder, 
struck  him  over  the  head  with  a  musket,  knocking  him  down  the  stairs.  In 
the  latter  case  the  court  held  that  the  burden  of  proving  that  the  mistake 
was  negligent  rested  upon  the  plaintiff,  but  that  the  defendant  was  bound  to 
exercise  the  highest  care  practicable  to  ascertain  whether  the  person  whom 
he  struck  was  the  one  from  whom  he  had  reason  to  apprehend  danger. 


OGDEN    V.    CLAYCOMB.  899 

OGDEN  V.  CLAYCOMB. 
Supreme  Court  of  Illinois,  1869.    52  ///.  Rep.,  365. 

Lawrence,  J.  This  was  an  action  for  assault  and  battery,  in 
which  the  jury  foimd  for  the  defendant.  The  verdict  was  against 
the  evidence,  and  there  was  error  in  the  instructions  for  the  de- 
fendant. From  the  first  instruction  the  jury  would  understand,  if 
the  plaintiff  advanced  upon  the  defendant  in  a  threatening  man- 
ner, for  the  purpose  of  fighting,  and  a  fight  followed,  the  plaintiff 
could  not  recover,  even  though  the  defendant  had  far  exceeded  the 
just  bounds  of  self-defense,  and  inflicted  an  inhuman  beating,  pro- 
vided he  desisted  as  soon  as  the  plaintiff  asked  him  to  do  so.  The 
rule  is,  on  the  contrary,  that  no  more  violence  can  be  used  than  a 
reasonable  man  would,  under  the  circumstances,  regard  necessary 
to  his  defense.^  If  he  strikes  a  blow  not  necessary  to  his  defense, 
or  after  all  danger  is  past,-  or  by  way  of  revenge,^  he  is  guilty  of 
an  assault  and  battery.  The  third  instruction  tells  the  jury,  among 
other  things,  that  the  plaintiff,  in  order  to  recover,  should  have  been 
guilty  of  no  provocation.  This  is  error.  It  is  wholly  immaterial 
what  language  he  may  have  used,*  so  far  as  the  right  to  maintain 
an  action  is  concerned,  and  even  if  he  went  beyond  words,  and  com- 


^Cockroft  V.  Smith,  2  Salk.  642  (1705),  an  action  of  assault  and  battery 
and  mayhem,  Holt  C  J.  saying,  that  "for  every  assault  he  did  not  think  it 
reasonaiile  a  man  should  be  banged  with  a  cudgel";  Thomason  v.  Gray,  82 
Ala.  291  (1886).  the  jury  may  consider  the  relative  size  of  the  parties  in  de- 
termining whether  the  use  of  weapons  was  necessary;  see  Edzvards  v.  Leazitt, 
46  Vt.  126  (1873)  ;  J'/olson  v.  Hastings,  1  Pennew.  47  (Del.  1897)  ;  IVelis  v. 
Englehart  118  111.  App.  217  (1905);  Tyson  v.  Booth,  100  Mass.  258  (1868), 
defendant  fired  his  shotgun  at  boys  who  were  throwing  snowballs  at  him; 
H/7o«  V.  5;-ocy«,  2  Wend.  497  (N.  Y.    1829j. 

The  defendant  must  show  that  "the  force  used  by  him  was  appropriate 
in  kind  and  suitable  in  degree,"  Rogers  v.  Waite,  44  Maine  275  (1857)  ; 
O'Leary  v.  Rowan,  31  Mo.  117  (I860).  "Ordinarily  the  question  how  far  a 
party  may  properly  go  in  self-defense  i<^  a  question  for  the  jury,  not  to  be 
judged  of  too  nicely,  but  with  due  regard  to  the  infirmity  of  human  impulses 
and  passions,"  Morton  J.,  in  Monizc  v.  Bcgaso,  190  Mass.  87  (1906),  p.  89; 
but  the  defendant  must  have  both  an  honest  and  reasonable  belief  that  the 
force  he  employs  is  necessary  for*  his  defense,  Kent  v.  Cole,  84  Mich.  579 
(1891). 

'^Hudson  v.  Crane,  Nov  115  (1606);  Watson  v.  Hastings,  1  Pennew.  A7 
(Del.  1897)  ;  Beavers  v.  Bo'wen,  26  Ky.  L.  291  (1904)  ;  Monize  v.  Begaso,  190 
Mass.  87  (1906). 

^Hetrick  v.  Crouch,  141  Mich.  649  (1905)  ;  Broustcr  v.  Fox,  117  Mo.  App. 
711  (1906)  ;  Hanson  v.  Europe  &  N.  A.  R.  Co.,  62  Maine  84  (1873)  ;  Monize 
V.  Begaso,  190  Mass.  87  (1906). 

*  Mere  words,  no  matter  how  abusive,  cannot  justify  an  assault,  Soraen- 
frei  V.  Schroeder,  75  111.  397  (1885);  Crosbv  v.  Humphreys,  59  Minn.  92 
(1894);  Murray  v  Bo\nc,  42  Mo.  472  (1868);  WiUev  v.  Car/Center,  64  Vt. 
212  (1892)  ;  but  see  Tuckers  v.  Walters,  78  Ga.  232  (1886)  ;  Gizler  v.  Witsel, 
82  111.  322  (1876).  As  to  whether  a  defendant  who  has  provoked  an  assault 
can  justify  force  in  defending  himself,  see  Hulse  v.  Tollman,  49  111.  App.  490 
(1893)  ;  Thor.iason  v.  Gray,  82  Ala.  291  (1886)  ;  Morris  Hotel  Co.  v.  Hcnlev, 
145  Ala.  678  (1906) ;  but  see  Beavers  v.  Bowen,  26  Ky.  L.  291  (1904). 


900 


V.    FAKENHAM. 


mitted  a  technical  assault,  the  acts  of  the  defendant  must  still  be 
limited  to  a  reasonable  self-defense."  All  the  instructions  for  the 
defendant  are  pervaded  to  a  greater  or  less  degree  by  these  errors, 
and  should  have  been  refused.  The  judgment  must  be  reversed 
and  the  cause  remanded. 

Judgment  reversed. 

(b)     Defense  of  others  from  wrongful  violence. 


v.  FAKENHAM. 


Court  of  Common  Pleas,  1470.     Y.  B.  9  Edw.  IV,  48,  pi.  4. 

In  trespass  for  battery  against  Fakenham,  he  says  that  the 
plaintiff  made  an  assault  upon  one  W.  F.,  son  of  the  said  defendant, 
and  the  defendant  saw  this  and  commanded  one  J.,  his  servant,  to 
go  to  his  son  and  defend  him,  and  keep  him  from  damage,  by  force 
of  which  he  went  to  him  and  assaulted  the  said  son  (plaintiff),  and 
so  the  wrong  which  the  plaintiff  had  was  of  the  assault  which  he 
made  upon  the  said  W.  F.,  and  in  defense  of  him,  &c.  Catesby. 
This  is  not  to  the  purpose ;  for  where  a  man  assaults  me,  if  I  beat 
him  in  my  defense,  I  shall  be  excused ;  but  if  he  assaults  a  stranger, 
I  cannot  beat  him  in  his  defense,  for  I  have  nothing  to  do  with  him, 
but  I  can  part  them,  &c.  Moyle  and  Needham,  JJ.  If  I  see  a  man 
assaulting  another,  I  can  part  them  and  put  my  hand  upon  him  who 
made  the  assault,  and  hold  him  so  that  he  cannot  come  at  the  other, 
&c. ;  but  they  said  that  I  cannot  draw  my  sword  and  beat  the  one 
who  made  the  assault,  &c. ;  but  it  is  otherwise  if  one  assaults  my 
master,  I  can  beat  him  in  defense  of  my  master,  &c.  Choke,  J. 
That  is  true,  for  the  servant  is  held  and  bound  to  the  master,  and 
so  he  can  for  his  mistress,  &c.  But  the  master  cannot  do  as  much 
for  his  servant,  for  he  is  not  so  held  to  do  for  his  servant,  &c.^ 
And  then  Gcnney  says  nt  supra  that  the  plaintiff*  assaulted  the  said 
son  of  the  defendant  then  being  present,  &c.,  and  he  commanded 
such  an  one,  his  servant,  to  go  to  his  son  and  part  them,  and  keep 
his  son  without  damage,  by  reason  whereof  he  went  to  them  and 
parted  them,  and  put  his  hand  upon  this  plaintiff,  so  that  he  should 
not  approach  the  said  son,  &c.,  wdiich  is  the  same  battery,  &c.- 

'  Set-McNatt  v.  McRae,  117  Ga.  898  (1903). 

^The  right  of  a  master  to  use  force  in  defense  of  his  servant  is  recog- 
nized in  Seaman  v.  Cuppledick,  Owen  ISO  (Circa  1607),  on  the  ground  that 
otiierwise  the  master  would  lose  his  services,  but  see  Leward  v.  Basely,  1  Ld. 
Raym.  62  (169.S),  where  it  is  said  in  such  case  the  master  has  no  right  to 
defend  his  servant,  since  he  has  an  action  per  quod  servitium  amisit:  and 
Yelverton  J.,  citing  Y.  B.  19  Henry  VI,  60o,  "A  lord  may  justify  in  defense 
of  his  villein  for  he  is  his  inheritance,"  per  Crook  J.  in  the  same  case.  So  in 
Anon.,  Y.  B.  19  Hen.  VI  31,  pi.  59  (1440),  a  husband's  right  to  defend  his 
wife  is  put  on  a  similar  ground  that  she  is  his  chattel. 

^The  wife's  right  to  defend  her  husband  is  recognized  in  Leward  v. 
Baselv,  1  Ld.  Ravm.  62  (1695).  A  child  mav  defend  its  parents.  Beavers  v. 
Bo7i-eii,  26  Ky.  L.  291  (1904)  ;  and  Obier  v.  Neal,  1  Houston  449  (Del.  1855). 
In  Higgins  v.  Minaghan,  78  Wis.  602  (1891),  it  was  held  that  a  husband  and 


MORRISON    f.    COMMOXWEALTH.  QOT 

OBIER  r.  NEAL. 
Superior  Court  of  the  State  of  Dclazvarc,  1855.       1  Houston,  449. 

Action  for  an  assault  and  battery.  Joseph  Neal  assaulted  Obier 
with  a  large  stick,  uplifted  with  both  hands,  and  drawn  back  in  a 
threatening  manner.  Obier  seized  a  small  one,  which  he  did  not 
raise,  but  held  in  his  hand  by  his  side,  when  Neal  struck  him  a  hard 
blow  on  the  top  of  his  head  with  his  stick,  and  then  Obier  returned 
the  blow  with  his  stick  but  with  less  violence,  on  the  side  of  Neat's 
head.  They  then  dropped  their  sticks  and  closed  with  each  other, 
when  William  Neal  seized  the  plaintiff  by  the  right  arm,  and  wdiile 
he  thus  held  him,  William  H.  Neal  caught  up  the  stick  which  Joseph 
Neal  had  dropped,  and  struck  the  plaintiff  Obier  a  severe  blow  over 
the  head  with  it.  William  H.  Neal  pleaded  a  justification  of  his 
assault  and  battery  upon  the  plaintiff  in  defense  of  his  father, 
Joseph  Neal ;  and  upon  this  evidence  the  counsel  on  both  sides  in- 
voked the  charge  of  the  court  as  to  the  sufficiency  of  his  plea  of 
justification  under  the  circumstances. 

GiLPix,  Ch.  J.,  charged  the  jury:  That  to  sustain  the  plea  it 
must  appear  that  \he  father  was  first  assailed  by  the  plaintiff,  and 
was  resisting  his  attack,  when  the  son  interfered  to  defend  him. 
For  if  the  father  was  the  aggressor  and  committed  the  first  assault, 
and  was  consequently  a  trespasser  from  the  beginning  of  the  com- 
bat, and  was  not  himself  justifiable  in  the  assault  and  battery  com- 
mitted by  him  upon  the  plaintiff,  then  the  plea  of  the  son  could  not 
avail  him,  for  he  became  a  co-trespasser  with  his  father,  and  was 
liable  with  him  in  the  action.  But  if  the  father  was  not  the  ag- 
gressor, and  a  trespasser  himself,  from  the  beginning  of  the  fight, 
and  was  only  repelling  the  attack  of  the  plaintiff  in  his  own  defense, 
when  the  son  interposed,  as  he  might  lawfully  do  in  such  a  case  in 
defense  of  his  parent,  then  he  would  not  be  liable;  provided  he 
used  only  such  force  as  the  danger  to  which  his  father  was  exposed 
at  the  time  rendered  necessarv  for  his  defense  and  security.  If, 
however,  he  exceeded  that  degree  of  force,  even  under  such  cir- 
cumstances, he  would  still  be  liable. 

Verdict  for  the  plaintiff.^ 

MORRISON  r.  COMMONWEALTH. 

Kentucky  Court  of  Appeals,  1903.    24  Ky.  L.,  2493. 

HoBSON,  J.     So,  the  case  comes  to  this:  Did  Morrison,  when 
he  saw  Alex  Dean  committing  an  assault  on  his  sister,  and  pushmg 

father  was  justified  in  shooting  at  a  party  who  were  giving  a  "charivari"  out- 
side his  house,  if  he  could  not  otherwise  cause  them  to  desist  their  noise  and 
tumult  which  was  terrifying  his  wife  and  children  to  an  extent  that  affected 
their  health  and  endangered  their  lives. 

^Accord:  Jones  v.  Fortune.  128  111.  518  (1889),  master  defending  servant; 
Beavers  v.  Bowen,  26  Ky.  L.  291  (1904).  son  coming  to  defense  of  his  father; 
Brouster  v.  Fox,  117  Mo.  App.  711  (1906),  semble. 


g02  .    MORRISON    V.    COMMONWEALTH. 

or  striking  her  against  the  house,  have  a  right  to  intervene  between 
the  brother  and  sister  for  his  protection  from  a  simple  battery?    In 

1  Bishop  on  Criminal  Law,  §877,  it  is  said :  "The  doctrine  here  is 
that  whatever  one  may  do  for  himself  he  may  do  for  another.  The 
common  case,  indeed,  is  where  a  father,  son,  brother,  husband,  serv- 
ant, or  the  like,  protects  by  the  stronger  arm  the  feebler.  But 
a  guest  in  a  house  may  defend  the  house,  or  the  neighbors  of  the 
occupant  may  assemble  for  its  defense ;  and,  on  the  whole,  though 
distinctions  have  been  taken  and  doubts  expressed,  the  better  view 
plainly  is  that  one  may  do  for  another  whatever  the  other  may  do 
for  himself."  The  statement  of  the  law,  as  applied  to  simple  bat- 
teries and  breaches  of  the  peace,  is  broader  than  it  is  usually  put 
in  the  authorities.  Thus,  in  3  Bl.  Com.  3,  it  is  said :  "The  defense  of 
one's  self  or  the  mutual  or  reciprocal  defense  of  such  as  stand  in 
relations  of  husband  and  wife,  parent  and  child,  master  and  serv- 
ant. In  these  cases,  if  the  party  himself,  or  any  of  these,  his  re- 
lations, be  forcibly  attacked  in  his  person  or  property,  it  is  lawful 
for  him  to  repel  force  by  force ;  and  the  breach  of  the  peace  which 
happens  is  chargeable  upon  him  only  who  began  the  affray."  In  a 
note  to  this  it  is  added :  "When  a  person  does  not  stand  in  either  of 
these  relations,  he  cannot  justify  an  interference  on  behalf  of  the 
party  injured,  but  merely  as  an  indifferent  person  to  preserve  the 
peace."     See,  to  the  same  effect,  2  Am.  &  Eng.  Enc.  Law,  p.  981 ; 

2  Roberson,  Criminal  Law,  §453. 

When  a  felony  is  apparently  about  to  be  committed,  as  where 
there  is  apparent  danger  of  loss  of  life  by  the  person  assailed  or 
of  great  bodily  harm  to  him,  a  different  rule  prevails,  and  there 
any  third  person  may  lawfully  intervene  for  his  protection,  using 
such  means  for  his  defense  as  the  person  assaulted  himself  may 
lawfully  use.  But  where  the  assault  is  not  felonious,  and  the  per- 
son intervening  does  not  stand  in  any  relations  to  the  one  assaulted 
except  out  of  the  common-law  rule,  then  he  who  intervenes  can 
act  only  for  the  preservation  of  the  peace.  He  cannot  come  into 
the  difificulty  for  the  purpose  of  taking  the  place  of  the  person  as- 
sailed, and  continuing  the  fight.  This  is  the  common-law  rule,  as 
we  understand  the  authorities,  and  we  cannot  depart  from  it  or 
extend  it. 

It  is  conceded  on  all  hands  that  Morrison  ran  down  on  tiptoe 
to  where  Alex  Dean  and  his  sister  were,  some  90  feet  away.  If, 
when  he  got  there,  he  at  once  stabbed  Dean,  in  the  back,  as  stated 
by  the  witnesses  for  the  commonwealth,  he  was  the  aggressor.  The 
instruction  of  the  court,  which  submitted  to  the  jury  the  question 
whether  Morrison  believed,  or  had  reasonable  grounds  to  believe, 
himself  in  danger  of  death  or  great  bodily  harm  at  the  hands  of 
Dean,  when  he  stabbed  him,  was  more  favorable  to  ]\Iorrison  than 
the  law  warranted,  as  the  court  did  not  submit  to  the  jury  the  ques- 
tion whether  Morrison  was,  the  aggressor.  ^^lorrison  knew  that  the 
illicit  relations  between  him  and  Ida  Dean  were  the  foundation  of 
the  animosity  of  Alex  Dean  to  him.  He  also  knew  that  this  was 
the  cause  of  the  quarrel  between  the  brother  and  sister.    With  this 


MC  ILVOY   V.    COCKRAN. 


903 


knowledge  he  ran  on  tiptoe  down  to  where  they  were,  armed  w-ith  a 
dirk,  and  if,  as  he  says,  he  caught  Alex  Dean  by  the  shoulder  and 
shoved  them  apart,  saying  to  him,  "You  can't  beat  her  where  I  am," 
his  interference  was  not  as  an  indifferent  person  to  preserve  the 
peace,  for  his  first  act  w^as  to  commit  a  battery  on  Alex  Dean  by 
taking  him  by  the  shoulder,  and  this  was  followed  up  by  a  declara- 
tion which  he  could  not  but  know,  under  all  the  circumstances, 
would  make  Alex  Dean  regard  him  as  an  assailant.  To  hold  that  he 
intervened,  under  the  evidence,  as  an  indifferent  person  to  preserve 
the  peace,  would  be  to  give  no  real  effect  to  the  common-law  rule 
allowing  greater  rights  to  parent  and  child,  husband  and  wife, 
master  and  servant,  or  the  like,  than  to  other  persons  in  cases  of 
simple  batteries  or  breaches  of  the  peace.  According  to  his  own 
testimony,  the  manner  of  his  approach,  his  conduct  on  reaching  Alex 
Dean,  and  his  declaration  to  him,  under  the  circumstances,  were 
not  those  of  one  bent  on  peace,  but  of  one  proposing  to  champion 
the  woman  and  fight  her  battles  for  her.  He  was  therefore  the  ag- 
gressor, and  the  court  did  not  err  in  refusing  to  admit  the  proof  as 
to  the  bad  character  of  Alex  Dean  or  his  previous  threats ;  and  this 
evidence,  if  admitted,  could  not  have  been  of  material  service  to 
the  defendant  under  the  view  of  the  law  which  we  have  indicated, 
for  the  jury  might  have  inferred  that  when  he  interfered  with  the 
knowledge  of  the  previous  threats  and  the  character  of  Dean  he 
anticipated  the  result  that  ensued.  The  verdict  of  the  jury  finding 
him  guilty  of  manslaughter,  and  fixing  its  punishment  at  eleven 
years  in  the  penitentiary,  seems  to  have  been  due  to  their  accepting 
the  version  of  the  transaction  as  given  by  the  witnesses  for  the 
commonwealth,  and  their  believing  that  Morrison  acted  in  sudden 
heat  on  seeing  the  woman  assailed  by  her  brother. 

Judgment  affirmed,^ 


(c)     Defense  of  one's  property  from  wrongful  intrusion. 

McILVOY  V.  COCKRAN. 
Court  of  Appeals  of  Kentucky,  1820.    2  A.  K.  Marsh  Ky.  Rep.,  271. 

Owsley,  J.  This  is  an  appeal  from  a  judgment  recovered  by 
Cockran  in  an  action  of  trespass,  assault  and  battery,  brought  by 
him  against  Mcllvoy. 

(The  declaration  in  substance  charged  that  the  defendant  as- 
saulted and  beat  the  plaintiff  with  "sticks,  clubs,  fists,  hands  and 
feet."  The  defendant  pleaded,  first,  son  assault  demesne;  and  sec- 
ond, that  he  w^as  lawfully  in  possession  of  a  certain  close  which  he 

^The  members  of  a  party  of  friends  (or  social  party)  have  no  special 
right  to  interfere  in  defense  of  their  associates  different  from  that  of  third 
parties  generally,  Br  ouster  v.  Fox,  117  Mo.  App.  711  (1906),  which  also  holds 
that  the  right  of  one  to  intervene  when  he  believes  that  another's  life  is  in 
imminent  danger  is  limited  as.  the  right  to  strike  in  defense  of  a  father  is 
limited  in  Ohier  v.  Ncal,  1  Houston  449  (Del.  1855). 


904 


MC  ILVOY    V.    COCKRAN. 


had  enclosed  with  a  fence  and  that  the  plaintiff  with  force  and  arms 
and  against  his,  the  defendant's  will,  broke  down  some  of  the  posts 
and  rails  and  was  attempting  to  break  down  others,  when  the  de- 
fendant, being  upon  his  said  close,  did  defend  his  possession  thereof 
and  resisted  the  said  attempt  of  the  said  plaintiff  and  in  so  doing 
did  assault  and  beat  the  plaintiff,  as  mentioned  in  the  declaration, 
so  that  if  any  injury  happened  to  the  plaintiff,  it  happened  of  his 
wrong  and  in  the  lawful  and  necessary  defense  of  the  defendant's 
close,  posts,  and  rails.) ^ 

During  the  progress  of  the  trial  before  the  jury,  and  after  the 
evidence  was  closed  on  both  sides,  the  counsel  of  iMcIlvoy  moved 
the  court  to  instruct  the  jury,  that  if,  from  the  evidence,  they  be- 
lieved Mcllvoy  had  supported  the  truth  of  his  second  plea,  they 
ought  to  find  for  him ;  but  the  court  overruled  the  motion,  and  in- 
structed the  jury  that  it  was  not  every  trespass  that  would  justify 
so  enormous  a  battery,  and  that  if  the  jury  believed,  from  the  evi- 
dence, the  plea  was  true,  it  ought  to  go  in  mitigation  of  damages. 

The  jury,  after  retiring  from  the  bar  to  consult  of  their  ver- 
dict, returned  a  verdict  of  $i,ooo  in  favor  of  Cockran :  whereupon 
the  counsel  of  Mcllvoy  moved  the  court  for  a  new  trial,  on  the 
grounds — ist,  of  the  verdict  being  against  evidence ;  and,  2d, 
for  an  error  in  the  court's  refusal  to  instruct  as  asked  for  by  the 
counsel  of  Mcllvoy,  and  in  giving  the  instructions  it  did  to  the  jury. 
The  motion  was,  however,  overruled,  and  judgment  rendered  in 
conformity  with  the  verdict. 

The  examination  of  the  sufficiency  of  the  plea  divides  itself 
properly  into  two  inquiries: — ist,  As  its  sufficiency  to  bar  any  part 
of  the  cause  of  action,  and  if  any,  2d,  how  much? 

In  responding  to  these  inquiries,  it  must  be  borne  in  mind  that 
the  declaration  contains  a  charge  of  assault,  battery  and  tvounding : 
and  the  plea  alleges  the  injury  to  have  been  occasioned  by  Mcllvoy 
(the  defendant  in  the  circuit  court)  in  defense  of  a  close  of  which 
he  was  possessed ;  and  in  resisting  the  attempt  of  Cockran  forcibly 
to  enter  and  demolish  the  fence  thereto  appertaining. 

It  is  not  denied  but  that  an  assault  and  battery  may  be  justi- 
fied in  the  defense  of  the  possession  of  either  real  or  personal  prop- 
erty ;-  but  it  is  contended  that  previous  to  the  use  of  force  there 


^The  pleadings,  which  are  set  out  at  length  in  the  opinion,  are  much 
condensed. 

^In  Laurences  cases,  2  Rolle.  Abr.  548  (1609).  it  was  held  that  "one  may 
justify  the  battery  of  another  who  will  enter  mv  house,  for  it  is  my  castle"; 
and  in  Anon.,  Y.  B.  21  Henry  VII,  39.  pi.  50  (1505),  it  is  said  by  Fineux  C.  J., 
that  "if  a  man  is  in  his  house  and  hears  that  such  a  one  is  coming  to  his 
house  to  beat  him,  he  may  well  collect  his  friends  and  neighbors  to  help  him 
in  the  defense  of  his  person." 

While  more  force  may  perhaps  be  used  in  defense  of  one's  house  or 
home,  see  Anon.,  supra,  and  Ncwcome  v.  Russell,  133  Ky.  29  (1909),  the  right 
to  resist  intrusion  or  to  eject  an  intruder  is  not  confined  to  the  protection 
of  one's  home,  but  may  be  exercised  by  one  in  possession  of  any  real  property, 
as  by  an  occupant  of  a  business  office.  Morgan  v.  Durfee,  69  Mo.  469  (1879)  ; 
Townsend  v.  Briggs,  99  Cal.  481  (1893).  So  a  church,  which  has  lawfully 
discharged  its  pastor,  may  use  the  force  necessary  to  remoye  him  from  the 


MC  ILVOY    V.    COCKRAX.  9O5 

should  be  a  request  to  depart,  and  that  the  injury  should  not  be 
justified  in  the  mode  adopted  by  Mcllvoy,  but  that  he  ought  to  have 
pleaded  by  way  of  moliter  maniis  imposuit. 

That  moliter  manus  is  the  proper  mode  to  pleading  of  many 
actions  brought  for  injuries  arising  in  defense  of  the  possession  of 
property,  will  not  be  controverted ;  but  that  it  is  the  only  admissible 
mode  in  every  possible  case,  we  apprehend,  cannot  be  maintained. 

There  are  certainly  cases  where  force  may  be  employed  in  de- 
fense of  possession,  without  a  previous  request  to  depart.  Thus, 
in  the  case  of  Green  v.  Goddard,  2  Salk.  641,  the  court  said,  in 
cases  of  actual  force,  as  breaking  open  a  gate  or  door,  it  is  lawful 
to  oppose  force  with  force ;  and  if  one  breaks  down  a  gate,  or 
comes  into  a  close  with  force  and  arms,  the  possessor  need  not  re- 
quest him  to  depart,  but  may  lay  hands  upon  him  immediately,  for 
it  is  but  returning  violence  with  violence  :^  so  if  one  comes  forcibly 
and  takes  away  my  goods,  he  may  be  opposed  immediately,  for 
there  is  no  time  to  make  a  request :  but,  say  the  court,  where  one 
enters  the  close  without  actual  force,  although  his  entry  will  be  con- 
strued a  force  in  lazv,  there  must  be  a  request  to  depart  before  the 
possessor  can  lay  hands  upon  him  and  turn  him  out.* 

This  case  from  Salkeld,  whilst  it  discriminates  between  those 
cases  where  force  may  or  may  not  be  employed  without  a  request 
to  depart,  illustrates  conclusively  the  cases  where  moliter  fnanus 
should  properly  be  pleaded,  as  well  as  those  where  such  a  plea  as 
that  adopted  by  Mcllvoy  may  be  adopted.     It  shows  that  where 


pulpit  if  he  thereafter  insists  on  occupying  it,  Conway  v.  Carpenter,  80  Hun 
428  (N.  Y.  1894). 

The  right  is  available  against  one  seeking  to  enter  under  claim  of  adverse 
title;  McCarty  v.  Fremont,  23  Cal.  196  (1863)  ;  Drew  v.  Comstock,  57  Mich. 
176  (1885);  O'Donnell  v.  Mclntyrc,  118  N.  Y.  156  (1890),  or  who  seeks  to 
enter  without  the  owner's  consent  to  get  his  goods  which  are  on  the  premises, 
Newkirk  v.  Sabler,  9  Barb.  652  (N.  Y.  1850). 

The  right  to  use  force  in  defense  of  the  lawful  possession  of  chattels  was 
recognized  in  an  Anonymous  case,  Y.  B.,  19  Henry  VI,  31,  pi.  59  (1440), 
though  Fortescue,  as  counsel  for  the  plaintiff,  argued  that  the  defendant  had 
a  sufficient  remedy  in  the  action  of  trespass  de  bonis  asportatis;  and  Anon., 
Y.  B.,  9  Edw.  IV,  28,  pi.  42  (1469). 

*  So,  when  after  notice  not  to  come  upon  the  defendant's  premises,  the 
plaintiff  springs  on  the  land  in  a  threatening  manner,  the  defendant  may  law- 
fully resist  the  intrusion,  using  no  unnecessary  force,  Harrison  v.  Harrison, 
43  Vt.  417  (1871). 

*  Tullay  V.  Reed,  1  C.  &  P.  6  (1823)  ;  State  v.  Elliott,  11  N.  H.  540  (1841). 
semble;  Scribner  v.  Beach,  4  Dcnio  448  (N.  Y.  1847);  Ayers  v.  Birtch,  35 
Mich.  501  (1877).  So  it  is  held  in  Thompson  v.  Berry,  1  Cranch.  C.  C.  45 
(U.  S.  C.  C.  1801),  to  be  a  battery  to  push  a  trespasser  from  one's  land  with- 
out first  requesting  him  to  leave,  and  a  mere  antecedent  notice  not  to  tres- 
pass will  not  dispense  with  the  necessity  of  endeavoring  by  peaceful  means 
to  prevent  the  trespass  before  resorting  to  force,  Howell  v.  Hopldns,  8  Ky. 
L.  527  (1886),  compare  Harrison  v.  Harrison,  43  Vt.  417   (1871). 

So  in  defense  of  chattels,  Scribner  v.  Beach.  4  Denio  448  (N.  Y.  1847), 
and  see  Anon.,  Y.  B.,  9  Edw.  IV,  28.  pi.  42  (1469),  "If  a  man  will  take  my 
goods  I  may  lay  hands  on  him  and  prevent  him,  and  if  he  will  not  desist,  I 
may  beat  him,  rather  than  let  him  carry  them  off." 

So  one  who  has  entered  upon  a  revocable  license,  if  he  insist  upon  re- 
maining after  the  license  is  revoked  and  he  is  requested  to  leave,  becomes 


9o6 


MC  ILV^OY   V.    COCKRAN. 


possession  has  been  invaded  by  implied  force  only,  injuries  in  de- 
fense of  the  possession  ought  to  be  justified  by  way  of  moliter 
maniis;  but  where  the  possession  is  attacked  by  actual  force,  as  no 
request  to  desist  is  necessary,  the  injury  may  be  justified  by  plead- 
ing the  facts  which  authorize  the  employment  of  force  in  defense 
of  the  possession. 

We  are  aware  that,  in  some  reported  cases,  judges  are  said 
to  have  used  expressions  negativing  the  idea  of  any  justification  in 
defense  of  possession,  other  than  by  a  plea  of  moliter  manits;  but 
in  using  those  expressions,  we  apprehend,  the  court  must  have  had 
in  view  injuries  resulting  in  the  defense  of  possession  invaded,  not 
by  actual,  but  by  constructive  force. 

It  was  upon  this  distinction  between  actual  and  constructive 
force,  and  this  only,  and  by  applying  the  plea  of  moliter  maniis  to 
the  latter,  and  not  the  former,  that  the  reported  cases  can  be  recon- 
ciled with  each  other ;  and,  understanding  the  court,  when  speaking 
on  the  subject  of  that  plea,  to  have  had  in  mind  the  cases  of  con- 
structive force,  there  is  no  difficulty  in  reconciling  the  authorities. 

But  whilst  each  plea  is  admissible  when  applied  to  its  appro- 
priate case,  in  neither  mode  can  every  species  of  injuries  be  justi- 
fied, exclusively  in  defense  of  possession.  Where  the  possession 
is  invaded  by  force  in  law,  and  the  intruder  refuses  to  depart,  or 
where  it  is  invaded  by  actual  force^  force  may  be  employed  by  the 
possessor;  and  as  every  forcible  laying  of  hands  upon  another  is, 
in  legal  contemplation,  a  battery,  it  follows  that,  in  either  mode  of 
pleading,  an  assault  and  battery  may  be  justified. 

Notwithstanding,  however,  an  assault  and  battery  may  be  justi- 
fied in  either  mode  of  pleading,  we  apprehend  a  zvoimding  cannot 
be :  for  it  is  well  settled  that  in  defense  of  possession  a  wounding 

a  trespasser  and  may  be  ejected  as  such,  Woodman  v.  Howell,  45  111.  367 
(1867)  ;  Townsend  v.  Briggs,  99  Cal.  481  (1893). 

So  one  who  has  by  his  misconduct  forfeited  his  right  to  be  on  the  prem- 
ises ma}-,  if  he  refuse  to  leave,  be  forcibly  removed,  as  where  one  disturbs 
a  meeting,  religious,  political,  social  or  sporting.  Wall  v.  Lee,  34  N.  Y.  141 
(1865),  and  cases  cited  therein;  or  where  a  scholar  in  a  public  school  is  tur- 
bulent and  refractory.  Peck  v.  Smith,  41  Conn.  442  (1874)  ;  and  see  Smith  v. 
Slociim,  62  111.  354  (1872).  Nor  is  the  motive  of  the  defendant  in  excluding 
the  plaintiff  from  his  premises  or  in  revoking  his  license  material,  Slinger- 
land  v.  Gillispie,  70  N.  J.  L.  720  (1904)  ;  Townsend  v.  Briggs,  99  Cal.  481 
(1893)  ;  Brothers  v.  Morris,  49  Vt.  460  (1877). 

If  the  intruder  refuse  to  leave  when  requested  to  do  so.  the  owner  may 
turn  him  out,  using  no  unnecessary  force,  JVearer  v.  Bush,  8  T.  R.  78  (1798)  ; 
McDcrmott  v.  Kennedy,  1  Harr.  143  (Del.  1883)  ;  Lichtenwallner  v.  Lauhach, 
105  Pa.  St.  366  (1884);  Commonwealth  v.  Clark,  2  Mete.  23  (Mass.  1840); 
Coleman  v.  AVw  York  &c.  R.  Co.,  106  Mass.  160  (1870)  ;  Drew  v.  Comstock, 
57  :\Iich.  176  (1885)  ;  Watrous  v.  Steel,  4  Vt.  629  (1829),  and  the  intruder  has 
no  right  to  resist  expulsion  so  that  sufficient  force  may  be  used  to  overcome 
his  violent  resistance  thereto,  Coleman  v.  New  York  &c.  R.  Co.,  106  Mass. 
160  (1870).  The  owner  is  liable  if  he  uses  excessive  force  to  eject  a  tres- 
passer, Coleman  v.  New  York  &c.  R.  Co.,  106  Mass.  160  (1870)  ;  Hunt  v. 
Caskev,  60  Atl.  42  (N.  J.  1905)  ;  Brebach  v.  Johnson,  62  111.  App.  131  (1895)  ; 
Weaver  v.  Bush,  8  T.  R.  78  (1798),  in  which  it  is  said  that  in  such  case  the 
plaintiff  should  new  assign,  but  see  to  the  effect  that  no  new  assignment  is 
necessary,  Simpson  v.  Morris,  4  Taunton,  821  (1813). 


MC  ILVOY   V.    COCKRAN.  9O7 

cannot  be  justified.  Com.  Dig.,  title,  Pleader,  3  m,  16,  17.^  But 
although  a  wounding  cannot  be  justified  barely  in  defense  of  pos- 
session, yet  if,  in  attempting  to  remove  the  intruder,  or  prevent  his 
forcible  entry,  he  should  commit  an  assault  upon  the  person  of  the 
possessor,  or  his  family,  and  the  owner  should,  in  defense  of  him- 
self or  family,  wound  him,  the  wounding  may,  no  doubt,  be  justi- 
fied;*' but  then,  as  the  personal  assault  would  form,  the  grounds  of 
justification,  the  plea  should  set  out,  specifically,  the  assault  in  justi- 
fication. 

From  what  has  been  said,  it  will  be  perceived  that  the  plea  of 
Mcllvoy,  as  it  contains  allegations  of  actual  force  on  the  part  of 
Cockran,  imports  a  defense  to  the  assault  and  battery  charged  in 
the  declaration ;'  but  as  it  contains  no  allegation  of  a  personal  as- 
sault by  Cockran,  it  furnishes  no  justification  to  the  wounding 
stated  in  the  declaration.  It  results,  therefore,  that  if  the  plea  was 
proven  to  be  true,  the  jury,  sworn  to  try  also  on  other  issues  going 
to  the  whole  cause  of  action,  could  not  regularly  have  found  a  gen- 
eral verdict  for  Alcllvoy,  and,  consequently,  the  court  properly  re- 
fused the  instructions  to  the  jury  asked  by  Mcllvoy. 

The  only  remaining  question  necessary  to  be  noticed  involves 
an  inquiry  into  the  decision  of  the  court  in  refusing  a  new  trial. 

It  will  be  recollected  the  motion  was  made  on  the  grounds  of 
the  verdict  being  against  evidence,  and  on  the  grounds  of  the  court 
having  erred  in  their  instruction  to  the  jury. 

From  what  has  already  been  observed,  it  will  be  perceived  that 
there  is  no  error  in  the  decision  of  the  court  upon  the  motion  to 
instruct.  And  with  respect  to  the  evidence  it  need  only  be  remarked, 
that  it  appears  to  have  been  of  a  character  peculiarly  proper  for  the 
decision  of  the  jury,  and  not  such  as  will  justify  the  interposition 
of  this  court. 

The  judgment  must  be  affirmed,  with  cost  and  damages.* 

^Accord:  Wounding  in  defense  of  possession  of  land:  Gregory  v.  Hill, 
8  T.  R.  299  (1799)  ;  Ever  ton  v.  Estgate,  24  Nebr.  235  (1888)  ;  and  Newcome 
V.  Russell,  133  Ky.  29  (1909),  in  which  it  is  intimated  that  even  wounding  may- 
be justified  if  necessary  for  the  defense  of  one's  home. 

Wounding  in  defense  of  possession  of  chattels  :  Scribner  v.  Beach,  4  Denio 
448  (N.  Y.  1847)  ;  Gates  v.  Lounsbury,  20  Johns.  427  (N.  Y.  1823). 

Nor  can  the  use  of  dangerous  weapons  be  justified,  Hinchcliife's  case,  1 
Lew.  161  (1823)  ;  Everton  v.  Estgate,  24  Nebr.  235  (1888)  ;  nor  the  throwing 
of  stones  or  other  missiles  which,  after  they  leave  the  thrower's  hand,  can 
not  be  guided,  Cole  v.  Mamidcr,  2  Rolle.  Abr.  548  (1635)  ;  but  see  Talmage 
V.  Smith,  101  Alich.  370  (1883),  where  it  was  held  that  while  an  owner  of 
property  was  not  justified  in  throwing  a  stick  at  boys  trespassing  in  his  shed 
intending  to  hit  them,  he  was  justified  in  throwing  it  at  them  intending  only 
to  frighten  them,  though  in  fact  one  of  the  boys  was  struck. 

Nor  can  the  use  of  force  be  justified  unless  it  is  appropriate  to  rid  the 
land  of  the  intruder,  so  to  throw  down  a  ladder  upon  which  a  trespasser  was 
standing  held  not  to  be  justified  since  "it  only  left  him  on  the  ground  at  the 
foot  of  the  ladder,  instead  o£  being  upon  it,"  Collins  v.  Renison,  Sayer  138 
(1754). 

"See  Robinson  v.  Hawkins,  4  T.  B.  j\Ion.  134  (Ky.  1826)  ;  Fossbinder  v. 
Sfitak,  16  Nebr.  499  (1884). 

'See  Weaver  v.  Bush,  8  T.  R.  78  (1798). 

*An  occupier  of  land  is  not  bound  to  impound  trespassing  cattle  or  in- 


Q08  LIFE   V.    BLACKWELDER. 

0  LIFE  V.  BLACKWELDER. 

Appellate  Courts  of  Illinois,  1886.    25  ///.  App.  Rep.,  119. 

Conger^  P.  J-  This  was  an  action  originally  brought  by  ap- 
pellant against  appellee  before  a  justice  of  the  peace,  for  injuries 
inflicted  by  appellee  upon  appellant's  dog.  A  trial  was  had  before 
a  jury,  resulting  in  a  verdict  and  judgment  for  appellee.  Upon  ap- 
peal to  the  circuit  court  and  trial  before  a  jury,  the  result  was  the 
same. 

The  parties  to  the  suit  are  farmers,  residing  about  one  mile 
apart.  Appellant  is  the  owner  of  seven  or  eight  hounds  which  he 
keeps  for  hunting  purposes.  At  the  time  of  the  alleged  injury 
about  twenty  acres  of  appellee's  land  was  in  growing  wheat,  the 
land  having  been  rented  by  appellee  to  one  Nussman.  It  was 
claimed  by  appellee,  and  some  evidence  was  offered  tending  to  sup- 
port such  claim,  that  in  the  early  spring  and  during  the  time  the 
wheat  was  maturing,  the  dogs  of  appellant  were  in  the  habit  of 
running  through  this  wheat,  chasing  rabbits  and  other  game,  until 
they  had  trampled  down  and  destroyed  eighteen  or  twenty  bushels 
of  the  growing  wheat,  and  had  several  times  prior  to  the  shooting 
been  driven  out  with  clubs. 


animate  chattels  wrongfully  placed  or  allowed  to  remain  upon  his  premises, 
or  coming  accidentally  thereon,  but  he  may  drive  out  the  cattle,  Tyrringhams 
case  4  Coke  36  b  (1583),  even  into  the  highway,  and  this  without  liability  for 
their  subsequent  straving,  Cory  v.  Little,  6  N.  H.  213  (1813),  or  remove  them 
to  the  other's  premises,  Grier  v.  Ward,  23  Ga.  145  (1857)  ;  Knapp  v.  Hottuiiy, 
103  Pa.  St.  400  (1893)  ;  Ryan  v.  State,  5  Ind.  App.  396  (1894),  using  reason- 
able care  to  do  no  unnecessary  harm.  So  when  the  plaintiff  has  hitched  his 
horse  to  a  shade  tree,  the  owner  of  the  tree,  who,  to  prevent  the  horse  from 
gnawing  it,  as  horses  are  notoriously  prone  to  do,  may  unhitch  it  and  remove 
it  and  rehitch  it  to  a  nearby  hitching  post,  is  not  liable  in  trespass  de  boms 
asportatis,  though  he  would  be  liable  in  case  if  he  had  not  used  reasonable 
care  in  rehitching  it,  Gihnan  v.  Emery,  54  Maine  460  (1867).       _ 

He  may  not  set  ferocious  dogs  upon  trespassing  cattle,  Amick  v.  O  Hara, 
6  Black  253  (Ind.  1842),  but  unless  the  circumstances  make  it  unduly  danger- 
ous. Mclntire  v.  Plaisted,  57  N.  H.  606  (1876),  he  may  drive  them  out  with 
ordinary  farm  dogs,  Mitten  v.  Faudrye,  Popham,  161  (1624);  Hood  v.  La- 
Rue,  9  Mich.  158  (1881)  ;  Davis  v.  Campbell,  23  Vt.  236  (1851). 

In  removing  inanimate  chattels  the  occupier  of  the  land  should  remove 
them  to  some  adjacent  place  for  the  owner's  use,  Crane  v.  Mason,  Wright 
333  (Ohio  1853),  and  may  not  destroy  them  or  expose  them  to  unnecessary 
risk  of  injury,  Grier  v.  Ward,  23  Ga.  145  (1857),  though  if  the  chattels  are 
on  his  premises  by  their  owner's  wrong,  he  may  regard  his  own  interest  and 
convenience  rather  than  the  chattels  and  need  put  himself  to  less  trouble  anji 
expense  to  preserve  them,  Almy  v.  Grinnell,  12  Mete.  53  (Mass.  1846)  ;  with 
which  compare  Grier  V.  Ward,  ante.  Where  the  goods  come  on  the  land  ac- 
cidentally or  are  otherwise  thereon  without  their  owner's  fault,  they  must  be 
removed  with  the  least  possible  injury  to  them  and  inconvenience  to  their 
owner  Berrv  V.  Carle,  3  Grcenl.  269  (:\Iaine.  1825),  and  Fosdtck  v.  Colluis, 
1  Stark.  138"  (1816)  ;  the  latter  case  holding  that  the  plaintiff's  goods  having 
been  left  on  the  land  by  the  consent  of  the  vendor  of  the  defendant,  and  he  on 
taking  possession  having  refused  to  allow  the  plaintiff  to  remove  them,  he 
could  not  justify  removing  them  himself  to  a  distance. 


LIFE   V.    ELACKWELDER.  909 

The  circumstances  of  the  shooting  are  thus  detailed  by  the  ap- 
pellee in  his  testimony : 

"Last  June  I  shot  one  of  plaintiff's  hounds  while  he  was  running 
through  my  wheat ;  plaintiff's  hounds  had  been  accustomed  to  run 
in  said  lield  all  season,  and  were  damaging  it  by  knocking  it  down. 
y.lv.  Xussman,  my  tenant,  told  me  I  must  keep  the  dogs  out  of  the 
wheat  (to  which  last  statement  defendant  objected  and  excepted). 
I  saw  them  in  there  several  times,  and  heard  them  at  other  times ; 
I  never  saw  more  than  three  or  four  hounds  in  there  at  any  one 
time,  and  generally  only  saw  two.  There  were  eighteen  or  twenty 
acres  of  wheat  in  the  piece.  I  heard  a  couple  of  hounds  in  the 
wheat  and  took  my  gun,  loaded  with  No.  6  shot,  and  went  into  the 
wheat,  and  when  the  dogs  came  within  about  forty  yards  of  me 
I  shot  one  of  them,  a  black  and  white  fellow.  I  shot  the  dog  when 
he  was  coming  straight  toward  me,  because  he  was  in  the  wheat 
field  and  I  could  not  keep  them  out  any  other  way.  The  dogs  had 
knocked  down  enough  wheat  to  make  twenty  bushels  of  wheat ; 
they  were  running  rabbits  in  the  wheat,  and  made  roads  in  it." 

The  court,  at  the  instance  of  appellee,  gave  the  jury  the  follow- 
ing instructions : 

"The  court  instructs  the  jury  that  the  defendant  had  the  right 
to  use  such  means  as  were  necessary  for  the  purpose  of  putting  the 
dogs  out  of  his  field,  and  if  in  so  doing  it  resulted  in  the  mutilation 
of  the  animal  in  question  it  would  not  be  a  violation  of  law,  and  if 
the  jury  believe,  from  the  evidence,  that  the  defendant  used  such 
means  as  a  reasonable  man  would  use,  all  the  circumstances  con- 
sidered, to  exclude  the  dogs  from  his  field  and  his  wheat,  and  did 
no  more  harm  to  the  dog  than  was  necessary,  under  all  the  circum- 
stances proved  in  the  case,  then  the  jury  will  find  for  the  defendant." 
It  is  insisted  that  these  instructions  are  erroneous ;  that  however 
appropriate  they  might  be,  where  one  was  defending  his  animate 
property  from  destruction,  they  are  the  law  as  applied  to  the  pro- 
tection of  inanimate  property. 

Counsel  state  the  proposition  in  the  following  words :  "Ap- 
pellee had  not  the  right  to  exercise  the  same  force  to  protect  his 
wheat  field,  inanimate  property,  which  he  might  have  been  justified 
in  using  had  appellant's  dog  been  found  worrying  and  seemingly 
about  to  destroy  a  valuable  domestic  animal,  animate  property,  be- 
longing to  him." 

We  fail  to  see  the  propriety  of  the  distinction  made  by  counsel. "^ 

Every  man  has  a  right  to  defend  and  protect  his  property  of 
every  kind  and  character  from  injury  or  destruction,  provided  he 


^  Compare  also,  Ford  v.  Taggart,  4  Tex.  492  (1849)  :  Champion  v.  Vincent, 
20  Tex.  811  (1858),  and  Ames,  J.,  in  Clark  v.  Keliher.  107  Mass.  406  (1871). 
to  the  efifect  that  neither  mules,  hogs,  cattle  or  other  "animals  reclaimed  and 
used  for  burden,  husbandry  or  food"  can  be  killed  when  found  trespassing, 
even  to  preserve  the  crops  from  destruction,  with  Williams  v.  Dixon,  65  X. 
Car.  416  (1871),  where  it  was  held  that  the  defendant  might  kill  an  ass  which 
had  thrown  down  his  cow  and  was  stamping  on  it ;  and  see  Canefox  v.  Cren- 
shaw, 24  Mo.  199  (1857);  and  Anderson  v.  Smith,  7  III.  App.  354  (1880),  p 
359. 


9 TO  LIFE   %'.    r.LACK WELDER. 

uses  only  such  means  as  are  reasonabl}-  necessary  under  the  cir- 
cumstances. And  the  reasonableness  or  unreasonableness  of  the 
means  used  is  always  a  question  of  fact  for  the  jury. 

Thus,  in  Kline  v.  Kline,  6  Pa.  St.  318,  when  a  dog  was  killed 
in  the  act  of  getting  fish  down  from  the  wall  where  they  had  been 
hung  to  dry,  the  court  say:  "And  his  property,  whether  meat  or 
fish,  in  his  cellar,  in  his  kitchen  or  in  his  yard,  it  was  lawful  for  him 
to  preserve  against  any  man's  dog;  and  if  he  could  not  otherwise 
protect  it,  he  might  kill  the  dog  when  caught  on  his  premises  in  the 
act  of  destruction.  Whether  he  could  not  preserve  his  property 
and  the  customary  use  of  it  without  destroying  the  animal  commit- 
ting depredations,  when  found  in  the  act,  ought  to  have  been  sub- 
mitted to  the  jury  by  the  court,  as  a  question  within  their  province 
to  decide." 

In  the  case  at  bar  appellee  had  a  right  to  protect  his  wheat 
from  trespassing  dogs,  and  if,  in  the  opinion  of  the  jury,  it  could 
not  be  done  by  any  reasonable  means  except  by  those  used  by  ap- 
pellee,^ and  that  such  means  were,  under  the  circumstances  reason- 
able and  proper,  he  would  not  be  liable  to  appellant  for  the  injury 
resulting  therefrom. 

In  determining  the  question  of  the  reasonableness  of  resorting 
to  such  extreme  measure  to  protect  property,  the  value  of  the  animal 
doing  the  mischief,  the  disturbance  and  mischief  likely  to  be 
wrought,^  the  probability  of  less  severe  measures  being  successful 
and  the  necessity  for  immediate  action,  are  all  elements  to  be  con- 
sidered in  reaching  a  conclusion.'* 

^Accord:  Anderson  v.  Smith,  7  III.  App.  354  (1880)  ;  Kesbett  v.  Wilbur, 
\77  Mass.  200  (1900)  ;  and  see  Canefox  v.  Crenshaw,  24  Mo.  199  (1857),  scm- 
ble.  In  Simmonds  v.  Holmes,  61  Conn.  1  (1891),  in  which  the  relative  value 
of  the  animal  killed  and  the  property  threatened  or  attacked  by  it  was  held 
to  be  immaterial,  the  defendant  justified  under  a  statute  giving  him  the  abso- 
lute right  to  kill  animals  running  at  large  and  injuring  or  threatening  injury 
to  property. 

^  Compare  the  language  of  Holmes,  C.  J.,  in  Nesbett  v.  Wilbur,  177  Mass. 
200(1900). 

■•In  the  following  cases  the  dog  being  in  the  very  act  of  attacking,  injur- 
ing or  consuming  the  defendant's  property,  his  killing  was  held  justifiable; 
King  v.  Kline  (6  Pa.  St.  318),  cited  in  the  principal  case;  Leonard  v.  Wilkins, 
9  Johns.  233  (N.  Y.  1812),  the  dog  had  one  of  the  defendant's  fowls  in  his 
mouth  and  was  running  away  with  it  when  shot;  Canefox  v.  Crenshaw,  24 
Mo.  199  (1875),  buffalo  bull  shot  in  the  act  of  destroying  the  defendant's 
property  and  polluting  his  herd  of  cattle;  Williams  v.  Dixon,  65  N.  Car. 
416  (1871). 

In  Wright  v.  Ramscot,  1  Saunders  84  (1678),  a  plea  setting  forth 
that  the  defendant  stabbed  and  killed  the  plaintiff's  mastiff  because  it  was 
attacking  the  dog  of  the  defendant's  mistress,  was  bad,  it  not  alleging  that 
he  could  not  otherwise  separate  them;  accord:  Hinckley  v.  Emerson,  4  Cowen 
351  (N.  Y.  1825),  dog  making  slight  and  more  or  less  playful  attacks  on  de- 
fendant's hogs,  the  attack  was  over  and  the  dog  under  its  master's  charge 
when  killed— but  see  Boecher  \:  Ltitz,  13  Daly  28  (N.  Y.  1885)  —  ;  and  in 
Livermore  v.  Batchelder,  141  Mass.  179  (1886),  it  was  held  that  a  finding  that 
the  defendant  had  reasonable  cause  to  believe  that  the  dog  was  about  to 
attack  and  kill  his  chickens  did  not  justify  killing  the  dog,  in  the  absence  of  a 
finding  that  he  had  reasonable  cause  to  believe  that  it  was  necessary  to  kill 
the  dog  to  keep  him  from  killing  the  chickens;  compare  Nesbett  v.  Wilbur, 


LIFE   V.    BLACKWELDER.  9II 

As  was  said  in  Anderson  v.  Smith,  7  111.  App.  359,  "There 
must  be  an  apparent  necessity  for  the  defense,  honestly  believed  to 
be  real,  and  then  the  acts  of  defense  must  in  themselves  be  reason- 
able. Acts  beyond  reason  are  excessive.  The  consequences  of  the 
proposed  act  to  the  aggressor  should  be  considered  in  connection 
with  the  consequences  of  non-action  to  the  party  defending,  w^hether 
the  defense  be  made  in  favor  of  person  or  property." 

We  think  the  instructions  fairly  submitted  the  law  to  the  jury. 
Appellant's  third  instruction,  which  told  the  jury  that  if  appellee 
shot  the  dog  for  no  other  reason  than  that  the  dog  had  been  accus- 
tomed to  run  through  his  wheat,  they  should  find  for  appellant, 
announced  a  correct  principle  of  law,  and  had  the  evidence  justified 
it,  should  have  been  given. 

But  the  evidence  was  undisputed  that  the  dog  was  at  the  time 
of  being  shot  trespassing  upon  the  wheat,  and  appellee's  uncon- 
tradicted statement  being  that  he  shot  "because  he  was  in  the  wheat- 
field  and  he  could  not  keep  him  out  any  other  way,"  it  can  hardly 
be  presumed  that  the  jury  would  indulge  the  presumption  that  ap- 
pellee shot  the  dog,  for  the  reason  given  in  the  instruction. 

If  the  refusing  of  the  instruction  was  error,  we  do  not  think 
it  worked  any  injury  to  appellant.  Neither  do  we  think  the  remarks 
of  the  court  in  passing  upon  the  evidence  prejudiced  the  appellant. 

The  judgment  of  the  Circuit  Court  will  be  affirmed. 

Judgment  affirmed.^ 

177  Mass.  200  (1900)  ;  and  see  Ulery  v.  Jones,  81  111.  403  (1876)  ;  and  Cane- 
fox  v.  Crenshaw,  24  Mo.  199  (1857)  ;  contra,  Parrot  t  v.  Harts  field,  4  Dev.  & 
Bat.  110  (N.  Car.  1838),  which  makes  a  curious  distinction  between  the  kill- 
ing of  dogs  for  the  protection  of  animals  in  a  wild  state,  and  killing  of  dogs 
for  the  protection  of  sheep,  cattle  and  other  domesticated  and  useful  animals. 
But  compare  Ten  Hopen  v.  Walker,  96  Mich.  236  (1893),  Vv^here  it  was  held 
that  a  dog  could  not  be  shot  even  if  about  to  destroy  the  defendant's  plants, 
"because  the  law  affords  a  remedy  for  the  destruction  of  property  caused  by 
the  beasts  of  another,"  with  Throne  v.  Mead,  122  Mich.  273  (1899)  ;  and  Mc- 
Chesney  v.  Wilson,  132  Mich.  252  (1903),  and  see  Ames  J.  in  Clark  v.  Keli- 
her,  107  Mass.  406  (1871). 

In  the  following  cases  the  killing  was  held  unjustifiable,  the  animal  not 
being  caught  in  the  act,  Janson  v.  Brown,  1  Camp.  41  (1807),  the  dog  having 
dropped  the  fowl  an  instant  before  he  was  shot ;  Wells  v.  Head,  4  C.  &  P. 
568  (1831),  dog  had  left  the  field  where  he  had  worried  defendant's  sheep; 
Vere  v.  Lord  Cawdor,  11  East  568  (1809).  dog  shot  chasing  game;  but  com- 
pare Protheroe  v.  Mathews,  5  C.  &  P.  581  (1833)  ;  Barrington  v.  Turner,  3 
Lev.  28  (1697)  ;  Wadhurst  v.  Damme,  Cro.  Jac.  45  (1604),  where  the  dog  was 
chasing  game  in  a  "park"  or  "warren";  and  Dcane  v.  Clayton,  7  Taunton  489 
(1817)  ;  and  see  Johnson  v.  Patterson,  14  Conn.  1  (1840)  ;  Sosat  v.  State,  2 
Ind.  App.  586  (1891)  ;  and  Williams  v.  Dixon,  65  N.  Car.  416  (1871). 

^Accord:  McChesney  v.  Wilson,  132  Mich.  252  (1903);  Marshall  v. 
Blackshire,AAlo^2i  475  (1876). 

An  animal,  whether  cattle,  dogs  or  fowl,  cannot  be  killed  merely  because 
it  is  trespassing  and  cannot  be  kept  out  in  any  other  way,  Conner  v.  Chatnp- 
neys,  Taunton  Assizes  1814,  cited  in  argument  of  Deane  v.  Clayton,  2  Marshall 
(C.  P.)  684;  Ten  Hopen  v.  Walker,  96  Mich.  236  (1893)  ;  Clark  v.  Keliher, 
107  Mass.  406  (1871)  ;  Matthews  v.  Fiestal,  2  E.  D.  Smith,  90  (N.  Y.  1853), 
even  though  its  conduct  while  upon  the  land  is  highly  annoying;  Bowers  v. 
Horan,  93  Mich.  420  (1899)  ;  or  is  in  company  with  other  dogs  which  had 
previously  worried  cattle,  Barret  v.  Utley,  12  Bush  399  (Ky.  1896)  ;  nor  can 


912 


ALDRICII    V.    WRIGHT. 


ALDRICH  V.  WRIGHT. 
In  the  Supreme  Judicial  Court  of  New  Hampshire,  1873.    53  AT.  H.,  398. 

Debt,  by  Arthur  R.  Aldrich  against  Wells  Wright,  to  recover 
the  penalties  prescribed  by  Sec.  2,  Chap.  251,  General  Statutes,  for 
killing  minks.  The  defendant  admitted  the  killing  of  four  minks, 
but  alleged,  in  justification,  that  the  animals  were  at  the  time  pur- 
suing his  geese. 

The  only  evidence  in  the  case  was  the  testimony  of  George  W. 
Blood,  who,  in  common  with  the  defendant,  owned  a  small  goose- 
pond.  The  dividing  line  between  the  premises  of  the  witness  and 
the  defendant  was  the  brook  running  into  this  pond ;  and  the  houses 
occupied  by  the  witness  and  the  defendant  Vv^ere  on  the  opposite 
sides  of  the  brook,  and  but  a  few  rods  distant  therefrom.  The 
witness  testified  as  follows:  'T  stood  in  my  dooryard ;  heard  the 
geese  cackling;  I  came  out  on  to  a  little  knoll;  I  saw  the  four. 
minks  swimming  towards  the  geese ;  some  of  the  geese  had  then  got 
on  to  the  shore  of  the  pond  and  some  of  them  were  in  the  water ; 
the  minks  were  from  one  to  three  rods  distant  from  the  geese; 
some  of  the  geese  within  a  rod  of  the  minks,  who  were  one  old  mink 
and  three  young  ones,  but  all  about  the  same  size.  As  soon  as  the 
minks  saw  me  they  stopped  pursuing  the  geese,  and  ran  out  upon  a 
little  island  and  there  stopped.  At  the  same  time  I  came  out  the  de- 
fendant also  came  out  with  his  gun ;  he  came  out  near  the  end  of  the 
causeway  that  is  laid  across  the  lower  end  of  the  pond,  and  fired 
at  the  minks  on  the  island,  killing  them  all  at  one  shot,  the  minks 
were  all  on  the  island  when  he  fired  ;  the  defendant  carried  the  minks 
off  to  his  house ;  the  geese  were  six  old  ones,  and  eight  young  ones 
about  half  grown ;  geese  had  run  in  the  pond  two  or  three  sumrners ; 
never  knew  of  any  mink  chasing  any  geese  there  before  or  since; 
don't  know  whether  minks  are  accustomed  to  kill  geese  or  not." 

A  verdict  was  taken  for  the  plaintiff  by  consent,  subject  to  the 
defendant's  exception  to  a  pro  forma  ruling  that  the  defendant 
would  not  be  justified  in  killing  the  minks  if  the  geese  were  not_  in 
imminent  danger,  and  could  have  been  protected  either  by  driving 
away  the  geese,  or  frightening  or  driving  off  the  minks. 

Ray,  Drew  and  Heywood,  for  the  defendant. 

G.  A.  Bingham  and  Aldrich,  for  the  plaintiff. 


poison  be  put  out  to  kill  trespassing  dogs,  53  Mo.  App.  517  (1893)  ;  and  see 
Townsend  v.  Walthen,9  East.  277  (1808).  But  if  dogs  habitually  assemble  on 
the  defendant's  premises  and  by  their  fighting  and  howlmg  make  sleep  impos- 
sible in  his  house  and  so  become  a  nuisance,  he  may,  after  notice  to  their 
owners  to  restrain  them,  shoot  them  if  he  cannot  otherwise  keep  them  away, 
Brill  v.  Flagler,  23  Wend.  354  (N.  Y.  1840)  ;  Hubbard  v.  Preston,  90  Mich_ 
221  (1892),  though  a  dog  may  not  be  killed,  merely  because  it  has  the  habit  of 
barking  at  vehicles  in  the  street,  Jacquay  v.  Hartzell,  1  Ind.  App.  500  (18J1). 
Contra:  Ten  Hopen  v.  Walker,  96  Mich.  236  (1893),  semble,  in  which, 
as  in  Brent  v.  Kimball,  60  111.  211  (1871),  the  right  to  kill  a  trespassing  dog 
was  said  to  be  restricted  to  the  statutory  rights  to  kill  a  dog  worrying  or 
chasing  sheep  or  when  it  is  mad,  or  has  been  recently  bitten  by  a  mad  Jog,  or 


ALDRICH    V.    WRIGHT.  9I3 

Doe,  J.  In  this  case  the  question  is,  not  of  the  real  danger 
merely,  but  also  of  the  danger,  on  reasonable  grounds,  really  be- 
lieved by  the  defendant  to  exist. 

The  reputation  of  the  minks,  their  pursuit  of  the  geese,  and 
the  alarm  and  retreat  of  the  latter,  may  have  shown  apparent  dan- 
ger, when  the  real  character  of  the  pursuers  may  have  created  no 
actual  danger.  Mr.  Blood,  a  near  neighbor  of  the  defendant,  did 
not  know  whether  minks  are  accustomed  to  kill  geese  or  not.  The 
defendant  may  have  been  equally  uninstructed.  And  it  was  not  his 
duty  to  postpone  the  defense  of  his  property  until,  neglecting  his 
usual  occupations  and  incurring  expense,  he  could  examine  zoologi- 
cal authorities,  consult  experts,  or  take  the  opinion  of  the  county, 
on  the  question  whether  his  "half-grown"  geese  were  actually  en- 
dangered, in  life  or  limb,  by  the  incursion  of  "one  old  mink  and 
three  young  ones,"  "all  about  the  same  size."  The  conclusion  of  the 
investigation  might  be  too  late.  And  if  the  question  were  found  to 
be  a  debatable  and  doubtful  one,  it  would  not  be  his  duty  to  settle 
it  by  trial  at  his  own  risk.  The  plaintiff's  doctrine  destroys  the  right 
of  defense  which  exists  in  a  case  of  merely  apparent  danger. 

The  plaintiff's  claim  that  the  defendant  is  liable  if  the  geese 
were  not  in  imminent  danger,  taken  in  the  sense  for  which  the 
plaintiff  contends,  and  the  sense  in  which  both  parties,  at  the  trial, 
probably  understood  it,  cannot  be  sustained. 

The  term  "imminent"  does  not  describe  the  proximity  of  the 
danger  by  any  rule  of  mechanical  measurement ;  and,  in  its  broad 
and  popular  signification,  admitting  a  large  degree  of  latitude  and' 
adaptation  to  circumstances,  it  may  be  properly  used  in  this  case. 
But  it  has  been  so  much  used  in  cases  of  defense  against  a  human 
aggressor,  and,  in  that  class  of  cases,  has,  for  peculiar  reasons, 
acquired  a  legal  meaning  so  special,  restricted,  and  technical,  that, 
if  used  in  a  case  like  the  present,  it  should  be  accompanied  by  some 
explanation  of  the  general  comparative  and  relative  sense  in  which 
it  is  used. 

It  is  probable  that  the  parties  understood  that,  by  the  doctrine 
of  imminent  danger,  the  defendant  was  liable  unless  the  geese  would, 
in  a  few  moments,  have  been  killed  by  the  minks  but  for  the  de- 
fendant's shot.  The  doctrine,  asserted  in  that  form,  would  be  er- 
roneous. It  was  for  the  jury  to  say,  considering  the  defendant's 
valuable  property  in  the  geese,  die  absence  of  absolute  property  in 
the  minks,  their  character,  whether  harmless  or  dangerous,  the 
probability  of  their  renewing  their  pursuit  if  he  had  gone  about  hi:, 
usual  business  and  left  the  geese  to  their  fate,  the  sufficiency  and 
practicability  of  other  kinds  of  defense,— considermg  all  the  ma: 
terial  elements  of  the  question,  it  was  for  the  jury  to  say  whether 
the  danger  was  so  imminent  as  to  make  the  defendant's  shot  rea- 
sonably necessary  in  point  of  time.  If,  but  for  the  shot,  some  o'^ 
the  geese,  continuing  to  resort  as  usual  to  the  pond,  apparently 
would  have  been  killed  by  these  minks,  within  a  period  quite  in- 

is  ferocious  and  attacks  persons,  but  see  the  criticism  of  this  case  in  Andersou 
,:  Smith,  7  m  App.  354  (1880). 


QI4  ALDRICII    V.    WRIGHT. 

definite,  and  if  other  precautionary  measures  of  a  rCdScnaWe  kind, 
as  measured  by  consequences,  would  have  been  inettectual,  the  dan- 
ger was  imminent  enough  to  justify  the  destruction  of  the  minks 
for  the  protection  of  property. 

Neither  was  there  a  remedy  in  guarding  the  fowls  day  and 
night.  The  profit  accruing  from  six  old  geese  and  eight  young  ones 
would  not  pay  the  expense  of  constant  convoy.  His  property 
might  as  well  be  consumed  by  the  minks  as  by  the  cost  of  a  guard. 
But,  however  small  the  value  of  the  property,  he  had  a  right  to 
protect  it  by  means  reasonably  necessary ;  reasonable  necessity  in- 
cluded a  consideration  of  economy :  and  eternal  vigilance,  as  the 
price  of  success  in  his  limited  anserine  business,  was  not  reasonable. 
According  to  the  precedent  of  charging  the  watch  to  bid  any  one 
stand,  and,  if  he  will  not  stand,  to  let  him  go,  the  defendant  should 
have  been  thankful  if  the  minks,  when  challenged,  had  gone  off ; 
but  their  halt  at  the  island  showed  no  inclination  to  go  any  consid- 
erable distance.  What  practicable  method  was  there  of  protecting 
the  geese  in  the  peaceful  possession  and  enjoyment  of  the  pond? 
Without  a  resort  to  firearms,  his  situation  would  seem  to  have  been 
full  of  embarrassment.  The  invasion  of  his  premises  was  annoy- 
ing ;  the  legal  perplexities,  with  which  it  is  now  claimed  he  was  en- 
vironed, had  they  been  understood  by  him  at  the  time,  would  have 
been  distressing. 

If  (as  the  jury  would  probably  find  the  fact  to  be)  it  apparently 
was  reasonably  necessary  for  him  to  kill  the  minks  in  order  to  pre- 
vent their  doing  mischief  to  his  property,  the  authorities  do  not  show 
that  he  transcended  the  right  of  defense. 

The  claim  that  the  defendant  was  liable  if  the  geese  could  have 
been  protected  by  driving  them  away  from  the  minks,  cannot  be 
sustained. 

Requiring  the  defendant  to  drive  away  the  minks  if  he  could, 
is  an  admission  that  he  had  a  right  to  drive  them  away,  and  that 
they  had  no  right  to  remain  on  his  premises  without  his  consent. 
But  requiring  him,  if  he  could  not  drive  them  away  from  the  geese, 
to  drive  the  geese  away  from  them,  is  a  practical  denial  of  his  right 
to  keep  geese  in  his  own  pond  or  on  his  own  land,  if  he  could 
only  keep  them  there  by  killing  minks.  It  amounts  to  this :  it  being 
impracticable  to  permanently  eject  the  assailants,  he  must  banish 
the  assailed ;  and,  the  raising  of  geese  being  impossible,  the  raising 
of  minks  is  compulsory.  A  freeholder,  permitted  to  fire  blank 
cartridges  only  to  cover  the  endless  retreat  of  his  poultry  before 
these  marauders,  and  obliged  to  suffer  such  an  enemy  to  ravage  his 
lands  and  waters  with  boldness  generated  by  impunity,  is  a  result 
of  turning  the  fact  of  the  reasonable  necessity  of  retreating  to  the 
wall  before  a  human  assailant  into  a  universal  rule  of  law.  This 
rule  practically  compels  the  defendant  to  bring  his  poultry  to  the 
block  prematurely,  and  to  abandon  an  important  branch  of  agri- 
cultural industry.  His  right  of  protecting  his  fowls  is  merely  his 
right  of  exterminating  them. 

To  hold,  in  this  case,  that  the  geese  should  have  been  driven 


ANON.  915 

away  from  their  home,  would  be  equivalent  to  holding  that  they 
should  have  been  killed.  The  doctrine  of  retreat  would  leave  them  a 
right  to  nothing  but  life  in  some  place  inaccessible  to  minks,  where 
life  might  be  unremunerative  and  burdensome.  But  that  doctrine 
being  irrelevant  when  the  aggressor  is  not  shielded  by  the  inviolabil- 
ity of  the  human  form  and  the  sacred  quality  of  human  life,  the 
geese  were  not  bound  to  retreat.  As  against  the  minks,  they  had  a 
right,  not  only  to  live,  but  to  live  where  the  defendant  chose,  on  his 
soil  and  pond,  and  to  enjoy  such  food,  drink,  and  sanitary  privileges 
as  they  found  there,  unmolested  by  these  vermin,  in  a  state  of  tran- 
quillity conducive  to  their  profitable  nurture.  And  it  was  for  the 
jury  to  say,  not  whether  he  could  have  driven  them  away  from  the 
minks,  but  whether  his  shot  was  reasonably  necessary  for  the  pro- 
tection of  his  property,  considering  what  adequate  and  economical 
means  of  permanent  protection  were  available,  the  legal  valuation  of 
vermin  life,  and  the  disturbance  of  mischief  likely  to  be  wrought 
upon  his  real  and  personal  estate  if  any  other  than  a  sanguinary  de- 
fense were  adopted. 

Verdict  set  aside. ^ 


(d)     Intrusion  upon  or  destruction  of  property  required  by 
individual  or  public  necessity. 

Rede,  C.  J.  in  Anon.,  Y.  B.  21  Hen.  VII,  27  PL  5  (1506). 

When  my  cattle  are  damage  feasant  in  another's  land,  I  can- 
not enter  to  drive  them  out,^  and  still  it  is  a  good  deed  to  drive 
them  out,  lest  they  do  more  damage.  But  it  is  otherwise  when  a 
stranger  drives  my  horse  into  another's  close,  where  it  does  dam- 

^  Accord:  Marshall  v.  Blackshire,  44  Iowa  475  (1876),  the  dog  had  chased 
the  defendant's  chickens  and  driven  them  from  their  feed  and,  on  being 
driven  av^^ay,  had  returned,  whereupon  the  defendant  shot  him,  it  was  held  not 
to  be  error  to  charge  that  it  was  not  necessary  in  order  to  justify  the  de- 
fendant in  kilHng  the  dog  that  the  dog  should  have  been,  at  the  instant  of  the 
shooting  in  the  act  of  worrying  and  killing  the  defendant's  chickens,  if,  when 
Icilled,  his  conduct  was  such  as  to  create  in  the  defendant's  mind  a  reasonable 
apprehension  of  continued  and  renewed  worrying  and  kilHng;  Dunning  v. 
Bird,  24  111.  App.  270  (1887),  defendant  shot  the  dog,  not  knowing  who  owned 
it,  as  it  was  coming  out  of  his  smoke  house ;  and  see  Boecher  v.  Luta,  13  Daly 
28  (N.  Y.  1885). 

In  Parrott  v.  Hartsfield,  4  Dev.  &  Bat.  110  (N.  Car.  1838),  it  is  held  that  "a 
sheep  stealing  dog  found  lurking  about  or  roaming  over  a  man's  land  where 
sheep  are  kept,  incurs  the  penalty  of  death"  and  may  be  shot  on  sight;  and  see 
Throne  v.  Mead,  122  Mich.  273  (1899),  in  which  it  is  held  that  such  a  kilHng 
is  justifiable  though  not  strictly  within  the  statute  giving  the  right  to  kill  dogs 
found  chasing  sheep;  and  Miller  v.  State,  5  Ga.  App.  463  (1908),  where  it  was 
held  that  a  sheep  killing  dog  might  be  killed  even  upon  its  owner's  premises 
by  the  son  of  one  whose  sheep  it  had  killed. 

Contra:  Johnson  v.  Patterson,  14  Conn.  1  (1840),  defendant  scattered 
poisoned  meat  about  to  kill  the  plaintiff's  chickens  which  had  habitually 
trespassed  upon  the  defendant's  premises  and  destroyed  his  seeds  thereon. 

^  For,  says  Kingsmill,  J.,  in  the  same  case,  "I  ought  first  to  tender 
amends." 

See  Goff  v.  Kitts,  15  Wend.  550  (N.  Y.  1836),  where  it  was  held  that  the 


9l6  PLOOF    Z'.    PUTNAM. 

age;  in  such  case  I  may  justify  an  entry  to  drive  it  out,  since  the 
damage  done  was  the  fault  of  another. 

Choke,  C.  J.,  in  Anon.,  Y.  B.  6  Edw.  IV,  7,  PI.  18. 

If  the  thorns  of  a  great  tree  had  fallen  on  his  land  by  the 
force  of  the  wind,  in  this  case  he  might  come  in  to  get  them,  be- 
cause the  falling  was  not  his  act  but  the  act  of  the  wind.^ 


(j  PLOOF  V.  PUTNAM. 

Supreme  Court  of  Vermont,  1908.    81  Vermont  Reports,  471, 

MuNSON,  J.  It  is  alleged  as  the  ground  of  recovery  that  on 
the  13th  day  of  November,  1904,  the  defendant  was  the  owner  of 
a  certain  island  in  Lake  Champlain,  and  of  a  certain  dock  attached 
thereto,  which  island  and  dock  were  then  in  charge  of  the  defend- 
ant's servant ;  that  the  plaintifif  was  then  possessed  of  and  sailing 
upon  said  lake  a  certain  loaded  sloop,  on  which  were  the  plaintiff 
and  his  wife  and  two  minor  children ;  that  there  then  arose  a  sud- 
den and  violent  tempest,  whereby  the  sloop  and  the  property  and 
persons  therein  were  placed  in  great  danger  of  destruction ;  that 
to  save  these  from  destruction  or  injury  the  plaintifif  was  com- 
pelled to,  and  did,  moor  the  sloop  to  defendant's  dock ;  that  the 
defendant  by  his  servant  unmoored  the  sloop,  whereupon  it  was 
driven  upon  the  shore  by  the  tempest,  without  the  plaintifif's  fault ; 
and  that  the  sloop  and  its  contents  were  thereby  destroyed,  and  the 
plaintifif  and  his  wife  and  children  cast  into  the  lake  and  upon  the 
shore  receiving  injuries. 

This  claim  is  set  forth  in  two  counts :  one  in  trespass,  charg- 
ing that  the  defendant  by  his  servant  with  force  and  arms  wilfully 
and  designedly  unmoored  the  sloop ;  the  other  in  case,  alleging  that 
it  was  the  duty  of  the  defendant  by  his  servant  to  permit  the  plain- 
tiff to  moor  his  sloop  to  the  dock,  and  to  permit  it  to  remain  so 
moored  during  the  continuance  of  the  tempest,  but  that  the  de- 
fendant by  his  servant,  in  disregard  of  this  duty,  negligently,  care- 
lessly and  wrongfully  unmoored  the  sloop.  Both  counts  are  de- 
murred to  generally. 

There  are  many  cases  in  the  books  which  hold  that  necessity, 
and  an  inability  to  control  movements  inaugurated  in  the  proper 
exercise  of  a  strict  right,  will  justify  entries  upon  land  and  inter- 
ferences with  personal  property  that  would  otherwise  have  been 

owner  of  a  swarm  of  bees,  which  have  made  their  hive  on  another's  land, 
may  not  enter  to  reclaim  them. 

'^Accord:  Popham  C.  J.  in  Mitten  v.  Faudrye,  Popham  161  (1682),  "if  ? 
tree  grow  in  a  hedge  and  the  fruit  fall  into  another's  land,  the  owner  may 
fetch  it  in  the  other's  land."  So  it  was  held  in  Hoffman  v.  Armstrong,  48 
N.  Y.  201  (1872).  that  an  owner  of  land  on  which  a  fruit  tree  stands,  whose 
branches  overhang  his  neighbor's  land,  may  enter  the  latter  to  take  the  fruit. 

But  if  the  owner  cut  the  thorns  and  they  fall  on  the  adjoining  land,  then 
it  is  held  in  the  principal  case  that  he  may  not  enter  and  take  them. 


PLOOF   7'.    PUTNAM.  gjy 

trespasses.  A  reference  to  a  few  of  these  will  be  sufficient  to  illus- 
trate the  doctrine. 

In  Miller  v.  Faudrye,  Poph.  i6i,  trespass  was  brought  for 
chasing  sheep,  and  the  defendant  pleaded  that  the  sheep  were  tres- 
passing upon  his  land,  and  that  he  with  a  little  dog  chased  them 
out,  and  that  as  soon  as  the  sheep  were  ofif  his  land  he  called  in 
the  dog.  It  was  argued  that,  although  the  defendant  might  law- 
fully drive  the  sheep  from  his  land  with  a  dog,  and  that  the  nature 
of  a  dog  is  such  that  he  cannot  be  withdrawn  in  an  instant,  and 
that  as  the  defendant  had  done  his  best  to  recall  the  dog  trespass 
would  not  lie. 

In  trespass  of  cattle  taken  in  A,  defendant  pleaded  that  he 
was  seized  of  C,  and  found  the  cattle  there  damage  feasant,  and 
chased  them  towards  the  pound,  and  that  they  escaped  from  him 
and  went  into  A,  and  he  presently  retook  them ;  and  this  was  held 
a  good  plea.  21  Edw.  IV,  64;  Vin.  Ab.  Trespass,  H.  34  pi.  19. 
If  one  have  a  way  over  the  land  of  another  for  his  beasts  to  pass, 
and  tlTe  beasts,  being  properly  driven,  feed  the  grass  by  morsels 
in  passing,  or  run  out  of  the  way  and  are  promptly  pursued  and 
brought  back,  trespass  will  not  lie.  See  Vin.  Ab.  Trespass,  K.  a. 
pi.  I. 

A  traveler  on  a  highway,  who  finds  it  obstructed  from  a  sud- 
den and  temporary  cause,  may  pass  upon  the  adjoining  land  with- 
out becoming  a  trespasser,  because  of  the  necessity.  Henn's  Case, 
W.  Jones,  296;  Campbell  v.  Race,  7  Cush.  408,  54  Am.  Dec.  728; 
Hvde  V.  Jamaica,  27  Vt.  443  (459)  ;  Morey  v.  Fitzgerald,  56  Vt. 
487,  48  Am.  Rep.  81 1.^ 

An  entry  upon  land  to  save  goods  which  are  in  danger  of  being 
lost  or  destroyed  by  water  or  fire  is  not  a  trespass.  21  Hen.  VII, 
27 ;  Vin.  Abr.  Trespass,  H.  a.4,  pi.  24,  K.  a.  pi.  3.^     In  Proctor  v. 

^  Aliter,  when  as  in  Holmes  v.  Seeley,  19  Wend.  507  (N.  Y.  1838)  ;  and 
Williams  v.  Safford,  1  Barb.  309  (N.  Y.  1849),  the  way  is  private,  whether  by 
grant,  see  Bullard  v.  Harrison,  4  M.  &  S.  387  (1815),  or  prescription,  Taylor  v. 
Whitehead,  2  Dougl.  745  (1781).  Notwithstanding  the  doubt  expressed  by 
Buller  J.  in  Taylor  v.  Whitehead.  2  Dougl.  745  (1781),  and  Nelson  C.  J.  in 
Holmes  v.  Seeley,  19  Wend.  107  (N.  Y.  1838),  it  was  held  in  Williams  v. 
Safford,  7  Barb.  309  (N.  Y.  1849),  that  there  is  no  distinction  between  a 
right  of  way  by  express  grant  and  one  of  necessity,  such  right  of  way  fol- 
lowing as  an  incident  of  the  grant  of  property  to  which  there  is  no  other 
access.  When  once  assigned  by  the  grantor  or  selected  by  the  grantee,  "it 
stands  on  the  same  footing  as  any  other  way  by  grant  and  both  parties  are 
bound  by  it,  the  grantor  not  to  obstruct  it,  and  the  grantee  to  be  confined 
to  it." 

If  the  owner  of  the  land  over  which  another  has  a  right  of  wav  ob- 
structs it,  it  is  held  in  Haley  v.  Colcord,  59  N.  H.  7  (1879),  that  the  owner 
of  the  way  may  go  out  of  the  way  to  pass  around  the  obstruction,  contra, 
Williams  v.  Safford,  7  Barb.  309  (N.  Y.  1849),  holding  his  only  remedy  to 
be  to  abate  the  nuisance  or  an  action  of  damages. 

When  the  public  have  a  right  to  use  a  path  but  subject  to  the  right  of 
the  owner  of  the  land  to  plow  it.  the  public  have  no  right  to  go  extra  viam 
to  escape  the  obstruction  or  bad  condition  of  the  nath  caused  bv  such  plow- 
ing, Arnold  v.  Holbrook,  L.  R.  8  Q.  B.  96  (1873).' 

■  Aliter,  if  the  goods  of  the  landowner  are  imperilled  by  the  wrongful 
act  of  the  defendant,   or  a  third  person,  against  whom  their  owner  might 


9l8  PLOOr   V.    PUTNAM. 

Adams,  113  Mass.  376,  18  Am.  Rep.  500,  the  defendant  went  upon 
the  plaintiff's  beach  for  the  purpose  of  saving  and  restoring  to  the 
lawful  owner  a  boat  which  had  been  driven  ashore  and  was  in 
danger  of  being  carried  off  by  the  sea ;  and  it  was  held  no  trespass. 
See  also  Dumvich  v,  S terry,  i  B.  &  Ad.  831. 

This  doctrine  of  necessity  applies  with  special  force  to  the 
preservation  of  human  life.  One  assaulted  and  in  peril  of  his  life 
may  run  through  the  close  of  another  to  escape  from  his  assailant. 
37  Hen.  VII,  pi.  26.  One  may  sacrifice  the  personal  property  of 
another  to  save  his  life  or  the  lives  of  his  fellows.  In  Mouse's 
Case,  12  Co.  63,  the  defendant  was  sued  for  taking  and  carrying 

have  an  action,  so  in  Anon.,  Y.  B.  21  Hen.  VII,  27,  pi.  5,  (1505),  it  was 
held  that  one  who  entered  a  field  and  gathered  corn  set  apart  for  tithes, 
and  carried  them  to  the  barn  of  the  plaintiff,  the  person  entitled  to  them 
could  not  justify  his  conduct  because  the  tithes  were  in  danger  of  destruc- 
tion by  cattle  in  the  field. 

The  right  of  any  citizen  to  enter  the  property  of  another  in  order  to 
extinguish  a  fire,  thespread  of  which  appears  reasonably  probable,  is  recog- 
nized in  Metallic  Compression  Casting  Co.  v.  Fitchburg  R.  R.,  109  Mass.  277 
(1873)  ;  Hyde  Park  v.  Gay,  120  Alass.  589  (1876). 

The  right  to  destroy  another's  property  to  prevent  the  spread  of  fire, 
was  held  in  Y.  B.,  9  Edw.  IV,  35,  (1469),  to  exist  in  a  neighbor  whose  prop- 
erty was  threatened  when  the  fire  was  due  to  the  owner's  negligence.  Such 
a  right  is  recognized  in  all  citizens  to  prevent  the  spread  of  fire  whatever 
its  origin,  when  necessary  for  the  common  good,  Maleverer  v.  Spinke,  Dyer 
32  (1537),  Saltpeter  Case,  12  Coke,  13  (1606)  ;  Bishop  v.  Mayor  of  Macon,  7 
Ga.  200  (1849)  ;  Surocco  v.  Geary,  3  Cal.  69  (1853)  ;  Field  v.  Des  Moines.  39 
Iowa  575  (1874);  McDonald  v.  Red  Wing,  13  Minn.  38  (1868),  semble; 
Respublica  v.  Sparhawk,  1  Dall.  357  (1788),  semble. 

The  right  is  in  the  citizens  as  individuals  and  not  in  the  state  under  its 
power  of  eminent  domain,  but  while  it  is  sometimes  exercised  by  them  as 
such,  Conwell  v.  Enirie,  2  Ind.  35  (1850),  it  is  more  usually  exercised  by 
local  authorities.  Dewey  v.  White,  M.  &  M.  56  (1827)  ;  Surocco  v.  Geary,  3 
Cal.  69  (1853)  ;  Bishop  v.  Mayor,  7  Ga.  200  (1849),  Field  v.  Des  Moines,  39 
Iowa  575  (1874),  McDonald  v.  Red  Wing,  13  .Minn.  38  (1868).  Its  exer- 
cise is  sometimes  committed  by  statute  to  the  discretion  of  the  municipal 
authorities;  as  to  the  effect  of  such  statutes,  see  American  Printing  Co.  v. 
Lawrence,  23  N.  J.  L.  9  (N.  J.  1847)  ;  Mayor  v.  Lord,  17  Wend.  285,  18 
Wend  126  (N.  Y.  1837),  holding  that  they  are  not  in  exercise  of  the  power 
of  eminent  domain,  and  Hale  v.  Lawrence,  1  Zab.  714  (N.  J.  1848),  holding 
that  they  are. 

In  Bishop  v.  Mayor,  7  Ga.  200  (1849),  it  is  held  that  the  person  whose 
property  is  destroyed  is  by  common  law  entitled  to  compensation  from  those 
whose  property  is  thus  preserved,  see  Mouaels^ase.  cited  in  principal  case. 

The  right  of  destruction  is  not  limited  to~the  prevention  of  the  spread 
of  fire,  it  exists  whenever  there  is  a  great  and  imminent  and  far-reaching 
danger  to  persons  or  property;  so  in  Dewey  v.  White,  M.  &  M.  56  (1827), 
firemen  were  held  justified  in  tearing  down  ruinous  chimneys,  which  were 
in  danger  of  falling  into  the  adjacent  highway,  in  Neivcomb  v.  Tisdale,  62 
Cal.  575  (1881),  it  was  held  that  a  levee  might  be  cut  to  prevent  a  general 
inundation,  though  the  plaintiff's  land  was  thereby  flooded:  and  see  Meeker 
v  Van  Rensselaer,  15  Wend.  397  (N.  Y.  1836),  and  Fields  v.  Stokley.  99 
Pa.  St.  306  (1882),  and  in  Harman  v.  Lynchburg,  2>2,  Grat.  Z7  (Va.  1880),  it 
was  held  that  the  police  might  destroy  whiskey  at  a  time  when  the  town  was 
full  of  disbanded  troops;  but  see  Reed  v.  Bias,  8  Watts  &  Serg.  189  (Pa. 
1844),  where  it  was  held  that  the  tearing  down  of  a  building  which  excited 
the  wrath  of  a  mob  was  not  a  justifiable  means  of  avoiding  mob  violence. 


PLOOF   V.    PUTNAM.  919 

away  the  plaintiff's  casket  and  its  contents.  It  appeared  that  the 
ferryman  of  Gravesend  took  forty-seven  passengers  into  his  barge 
to  pass  to  London,  among  whom  were  the  plaintiff  and  defendant; 
and  the  barge  being  put  upon  the  water  a  great  tempest  happened, 
and  a  strong  wind,  so  that  the  barge  and  all  the  passengers  were  in 
danger  of  being  lost  if  certain  ponderous  things  were  not  cast  out, 
and  the  defendant  thereupon  cast  out  the  plaintiff's  casket.  It  was 
resolved  that  in  case  of  necessity,  to  save  the  lives  of  the  passengers, 
it  was  lawful  for  the  defendant,  being  a  passenger,  to  cast  the 
plaintiff's  casket  out  of  the  barge;  that  if  the  ferryman  surcharge 
the  barge  the  owner  shall  have  his  remedy  upon  the  surcharge 
against  the  ferryman,  but  that  if  there  be  no  surcharge,  and  the 
danger  accrue  only  by  the  act  of  God,  as  by  tempest,  without  fault 
of  the  ferryman,  every  one  ought  to  bear  his  loss,  to  safeguard  the 
life  of  man. 

It  is  clear  that  an  entry  upon  the  land  of  another  may  be  justi- 
fied by  necessity,  and  that  the  declaration  before  us  discloses  a  ne- 
cessity for  mooring  the  sloop.  But  the  defendant  questions  the 
sufficiency  of  the  counts  because  they  do  not  negative  the  existence 
of  natural  objects  to  which  the  plaintiff  could  have  moored  with 
equal  safety.  The  allegations  are,  in  substance,  that  the  stress  of 
a  sudden  and  violent  tempest  compelled  the  plaintiff  to  moor  to 
defendant's  dock  to  save  his  sloop  and  the  people  in  it.  The  aver- 
ment of  necessity  is  complete,  for  it  covers  not  only  the  necessity 
of  mooring,  but  the  necessity  of  mooring  to  the  dock ;  and  the  de- 
tails of  the  situation  which  created  this  necessity,  whatever  the 
legal  requirements  regarding  them,  are  matters  of  proof  and  need 
not  be  alleged.  It  is  certain  that  the  rule  suggested  cannot  be  held 
applicable  irrespective  of  circumstances,  and  the  question  must  be 
left  for  adjudication  upon  proceedings  had  with  reference  to  the 
evidence  or  the  charge. 

The  defendant  insists  that  the  counts  are  defective  in  that' 
they  fail  to  show  that  the  servant,  in  casting  off  the  rope,  was  act- 
ing within  the  scope  of  his  employment.  It  is  said  that  the  allega- 
tion that  the  island  and  dock  were  in  charge  of  the  servant  does 
not  imply  authority  to  do  an  unlawful  act ;  and  that  the  allegations 
as  a  whole  fairly  Indicate  that  the  servant  unmoored  the  sloop 
for  a  wrongful  purpose  of  his  own,  and  not  by  virtue  of  any  gen- 
eral authority  or  special  instruction  received  from  the  defendant. 
But  we  think  the  counts  are  sufficient  in  this  respect.  The  allega- 
tion is  that  the  defendant  did  this  by  his  servant.  The  words  ''wil- 
fully and  designedly"  in  one  count,  and  "negligently,  carelessly  and 
wrongfully"  in  the  other,  are  not  applied  to  the  servant,  but  to  the 
defendant  acting  through  the  servant.  The  necessary  implication 
is  that  the  servant  was  acting  within  the  scope  of  his  employment. 
13  Ency.  PI.  &  Pr.  922;  Voegeli  v.  Picket  Marble,  etc.,  Co.,  49  Mo. 
App.  643;  Wabash  Ry.  Co.  v.  Savage,  no  Ind.  156,  9  N.  E.  85.. 


p20  NEWTON    V.    IIARLAND. 

See  also,  Palmer  v.  St.  Albans,  60  Vt.  427,  13  Atl.  569,  6  Am.  St. 
Rep.  125. 

Judgment  affirmed  and  cause  remanded.^ 


Id 


CHAPTER  II. 

Self  Help. 


^- 


(a)     Re-entry  upon  real  property. 


NEWTON  V.  HARLAND. 
Court  of  Common  Pleas,  1840.     1  Manning   &  Granger's  Reports,  644. 

Trespass  for  assault  and  battery. 

The  plaintiff  and  his  wife  declare  for  an  assault  on  the  wife 
and  forcing  her  into  the  street,  and  the  defendants  justify  by  reason 
of  the  landlord  (one  of  the  defendants)  being  in  the  lawful  pos- 
session of  the  house  and  the  wife  of  the  tenant  "being  unlawfully 
therein  and  disturbing  him  in  his  enjoyment  thereof,  whereupon 
they  gently  put  out  the  wife,  who  had  refused  when  requested  to 
depart  from  the  same."  ^ 

The  cause  was  tried  before  Parke  B.  at  the  Summer  assizes  for 
the  county  of  York,  1837.  The  facts  were  not  very  clearly  ascer- 
tained at  this  trial,  but  as  they  ultimately  appeared  at  the  subsequent 
trials  they  were  as  follows:  The  plaintiff",  A.  Newton,  on  the  ist  of 
September  1836,  hired  of  the  defendant  Harland,  for  the  period 
of  six  months,  several  rooms  in  a  house  which  Harland  occupied  at 
Studley,  near  Ripon,  in  the  county  of  York.  The  six  months  ex- 
pired on  the  1st  of  March  1837,  and  the  rent  not  having  been 
paid,  Harland  on  the  following  day,  and  the  other  defendant  Bailey 
as  his  assistant,  distrained  the  goods  of  the  plaintiff  A.  Newton,  and 
Mrs,  Newton  having  locked  the  doors  of  the  rooms,  and  refused 
to  give  up  the  keys,  Harland  employed  a  blacksmith  to  pick  the 
locks.  In  the  evening  of  the  same  day  Mrs.  Newton  was  requested 
to  quit  the  premises,  and  having  refused,  Harland  again  entered 
the  rooms,  accompanied  by  four  or  five  persons,  and  compelled  Mrs. 
Newton  and  her  children  and  servants  to  leave  the  apartments, 
Harland  himself  laying  hold  of  Mrs,  Newton's  arm,  and  leading 
her  out. 

Upon  the  facts  as  proved  at  the  first  trial,  Parke  B.  told  the 

nn  VJuxgit  V.  Lake^Erie  Tra>jsp^^2jj0m~Ca^  109  Minn.  456  (1910),  it 

y      was  held  Uiat^nTougTr's'^cR'TI^^^'oracloc^  not  be  an  actionable  tres- 

V  v^  pass,  if  no  damage  resulted,  yet  the  defendant  deliberately  using  another's 

^     Vrproperty  for  his  own  protection,   without  the  owner's  permission,   must  an- 

^    swer  for  any  damage  which  he  does. 

^  The  statement  of  the  pleadings  is  taken  from  the  second  opinion  of  Tin- 
dal,  C  J. 


NEWTON   V.    HARLAND.  921 

jury  that  the  second  plea  was  made  out,  and  directed  them  to  find 
the  issue  raised  by  that  plea  for  the  defendants.  The  jury  having, 
in  pursuance  of  this  direction,  found  their  verdict  on  the  second 
issue  for  the  defendants. 

TiNDAL,  C.  J.  It  seems  to  me  that  the  cause  must  go  down 
again  to  a  new  trial,  in  order  that  the  facts  with  respect  to  the  time 
and  the  manner  of  the  entry  by  the  defendants  may  be  more  pre- 
cisely ascertained,  and  the  matter  placed  in  such  a  shape  as  will  en- 
able either  party,  if  so  advised,  to  obtain  the  judgment  of  a  court 
of  error  upon  the  point. 

The  cause  was  again  tried  before  Alderson  B.  at  the  York- 
shire Summ.er  assizes,  1838.  The  facts  having  been  given  in  evi- 
dence, and  Hillary  v.  Gay,  6  C.  &  P.  284,  cited  on  the  part  of  the 
plaintiffs,  the  learned  Ssipn  told  the  jury  that  the  question  of  justi- 
fication was  a  mixed  question  of  law  and  fact ;  that  where  a  part 
of  a  house  is  let  for  a  certain  period,  and  the  tenant  refuses  to  quit 
at  the  expiration  of  the  term,  his  license  to  remain  ceases,  and  the 
landlord  is  entitled  to  turn  him  out,  using  no  unnecessary  violence. 
That,  with  respect  to  the  second  issue,  the  questions  for  the  jury 
to  consider  were,  whether  the  apartments  had  been  hired  by  the 
plaintiff  A.  Newton  for  a  certain  time  which  had  expired,  and 
whether  Mrs.  Newton,  on  being  required  to  quit,  had  refused  to  do 
so.  The  learned  baron  said  that,  if  these  facts  were  made  out  to 
their  satisfaction,  they  must  find  for  the  defendants  on  the  second 
issue ;  but  lest  the  Court  of  Common  Pleas  should  not  agree  in  opin- 
ion with  him,  his  lordship  directed  the  jury  to  assess  the  damage 
upon  that  issue  contingently. 

The  jury  returned  their  verdict  for  the  plaintiffs  on  the  first 
issue,  and  for  the  defendants  on  the  second,  and  they  assessed  the 
contingent  damages  at  iioo. 

Warren,  in  Michaelmas  term,  1837,  in  pursuance  of  leave  re- 
served to  him  at  the  trial,  moved  to  enter  a  verdict  for  the  plain- 
tiffs on  the  second  issue  for  the  damages  assessed  by  the  jury,  or 
for  a  new  trial  on  the  ground  of  misdirection.  The  court  refused 
a  rule  to  enter  a  verdict  for  the  plaintiff  on  the  second  issue  for  the 
damages  contingently  assessed,  as  the  defendants  had  not  consented 
to  the  assessment,  but  granted  a  rule  for  a  new  trial. 

The  court,  which  was  composed  of  Tindal,  C.  J.,  and 
Vaugiian,  Coltman  and  Erskine,  ]].,  took  time  to  consider;  but 
Mr.  Justice  Vaughan  dying,  and  Mr.  Justice  Coltman  dift'ering 
in  opinion  from  the  Lord  Chief  Justice  and  Mr.  Justice  Erskine, 
the  court  desired  that  the  case  might  be  re-argued.  It  was  accord- 
ingly again  argued  in  Easter  term  last,  before  Tindal^  C.  ].,  and 
Bosanquet^  Coltman  and  Erskine,  JJ. 

Tindal,  C.  J.  This  case  involves  a  question  of  great  importance 
and  one  of  very  general  application,  namely,  whether,  after  a  ten- 
ancy has  been  determined  by  a  notice  to  quit,  the  landlord  may  enter 
on  the  premises  whilst  the  tenant  stilT  remamsjefsoTratty"TtT~pD?- 
session,  and  after  requestfng-innrtir  depart  a^ncT  give  up  tTve^posses- 
sion,  and  his  refusing  so  to  dOjTTTay  turn  him  out  of  possession  by 


922 


NEWTON    V.    HARLAND. 


force,  using  as  much  force  and  no  more  than  Is  necessary  for  that 
purpose.  Upon  the  pleadings  in  this  case  the  plaintiff  and  his  wife 
declare  for  an  assault  on  the  wife,  and  forcing  her  into  the  street; 
and  the  defendants  justify  by  reason  of  the  landlord  being  in  the 
lawful  possession  of  the  house,  and  the  wife  of  the  tenant  being  un- 
lawfully therein,  and  disturbing  him  in  his  enjoyment  thereof, 
whereupon  they  gently  put  out  the  wife,  who  had  refused,  when 
requested,  to  depart  from  the  same. 

The  point  above  stated  must  be  necessarily  determined  before 
this  case  is  ultimately  decided.  It  appears,  however,  to  me,  that 
such  question  cannot,  upon  the  present  finding  of  the  jury,  be  prop- 
erly brought  before  us ;  but  that  there  is  a  preliminary  question 
which  must  be  first  ascertained,  namely,  whether,  upon  the  facts 
in  this  case,  the  landlord  entered  upon  the  premises  in  a^forcible 
manner,  against  the  provisions  and  enactments  ofjthe^stafu^s  made 
against  forcible  entry,  or,  at  all  events,  so  as  to  render  himself  Jiable 
to  an  indictmenLat  common  law.  For  if  tTTeTandlord.Tn  making  his 
entry  upon  the  tenant,  has  been  guilty;  either  of  a  breach  of  a  posi- 
tive statute,  or  of  an  offense  argain^stTHe'jcoiiiinQn„  law,  it  appears 
to  me  that  such  violation  of  the^law^irL  making  the  entry  causes  the 
possession  thereby  obtained  tp  be  illegal;  and  that  the  allegation 
in  the  plea  that  one  of  the  defendants'was  lawfully  m  possession  at 
the  time  the  assault  was  cpmrnitted,  is  negatived.  _ 

In  the  present  case  the  defendant  Harland,  accompanied  with 
five  other  men,  entered  into  the  apartments  which  had  been  in  the 
plaintiff's  occupation,  whilst  his  wife  still  remained  in  possession, 
under  circumstances  which,  at  least,  leave  it  as  a  question  for  the 
jury  to  determine,  with  proper  directions  from  the  judge  at  the  trial 
of  the  cause,  whether  such  entry  was  forcible  or  not.  The  case, 
indeed,  was  sent  down  by  the  court  to  a  second  trial  for  the  ex- 
press purpose  of  the  jury  finding  this  point,  either  in  the  negative 
or  the  affirmative.  The  point,  however,  has  not  been  left  to  them ; 
and  I  think,  upon  this  ground,  without  entering  into  any  discussion 
of  the  question  to  which  I  have  above  adverted,  on  which  I  forbear 
at  present  to  state  my  opinion,  that  the  cause  should  go  down  to 
another  trial. 

BosANQUET,  J.  I  agree  with  my  Lord  Chief  Justice  in  thinking 
that  a  new  trial  ought  to  be  granted  in  this  case.  Some  things  are 
clear.  If  a  tenant  hold  over  the  land  after  the  expiration  of  his 
term,  he  cannot  treat  the  lessor  who  enters  peaceably  as  a  tres- 
passer; and  the  lessor,  in  such  case,  may  justify  his  own  entry  upon 
the  land  by  virtue  of  his  title  to  the  possession.  Taylor  v.  Cole,  3  T. 
R.  295;  Taunton  v.,  Costar,  7  T.  R.  431.  On  the  other  hand,  the» 
lessor,  who  is  out  of  possession,  cannot  maintain  an  action  of  tres- 
pass against  the  tenant  holding  over.  He  must  first  acquire  a  lawful 
possession  before  he  can  maintain  such  action.  But  if  the  lessor 
enter  upon  the  land  to  take  possession,  he  may  treat  as  trespassers 
all  those  who  afterwards  come  upon  it ;  Hey  v.  Moorhouse,  6  New 
Cases,  52;  8  Scott  156;  or  who,  having  unlawfully  taken  possession, 
wrongfully  continue  upon  the  land,  as  in  the  case  of  Butcher  v. 


NEWTON    v.    HARLAND.  923 

Butcher,  7  B.  &  C.  399,  where  the  defendant  had  come  into  posses- 
sion of  the  land  by  intrusion,  and  the  rightful  owner,  having  en- 
tered, was  held  entitled  to  maintain  an  action  of  trespass  against 
him.  ^ 

The  lessor  may  even  break  and  enter  a  house,  provided  it  be 
empty,  which  has  been  occupied  and  held  over  by  his  tenant,  though 
the  tenaiit  riiay  have  left  some  of  his  property  therein.  Turner  v. 
Meymott,  i  Bing.  158.  But  no  case  has  yet  been  decided  in  which 
the  lessor  has  been  heldjto^be  justified  in  expelling  by  force  from  a  If 
dwelling  house  aj)erson  who,  having_lawfully  come  into  possession 
of  it,  has  merely_continued  to~Tibld  possession  aft£r-4be--£^piration_ 
o fjiisjide^   *— 

The  lessor  who  is  entitled  to  possession  may  acquire  such  pos- 
session by  lawful  entry ;  but  entry  by  force  is  not  lawful.  Such 
entry  is  expressly  prohibited  by  the  statute  5  Rich.  II,  c.  7,  even 
where  entry  is  given  by  law:  "The  king  defendeth  that  none  shall 
make  entry  on  lands  and  tenements  but  in  cases  where  entry  is 
given  by  law ;  and  in  that  case  not  with  strong  hand  nor  with  multi- 
tude of  people,  but  only  in  a  peaceable  and  easy  manner." 

It  was  said  in  one  case  by  Lord  Kenyon,  Taunton  v.  Costar,  7 
T.  R.  431,  that  if  the  party  had  entered  and  expelled  the  tenant  by 
force,  he  might  have  been  indicted  for  a  forcible  entry ;  from  which 
it  seems  to  have  been  supposed  that  the  entry  was  valid,  though  the 
party  entering  might  be  indicted  for  it.  But  if  the  act  be  expressly 
prohibited  by  statute,  it  must,  I  apprehend,  be  illegal  and  void.  If 
the  lessor  enter  with  a  strong  hand,  his  act  is  unlawful,  and  he  can- 
not, as  it  seems  to  me,  acquire  lawful  possession  by  an  unlawful  act. 

This  is  an  action  for  assault  and  battery.  The  defendant  Har- 
land  justifies  his  act  upon  the  ground  that  he  was  lawfully  in  pos- 
session;  that  the  plaintiff  j\Irs.  Newton  was  on  the  premises,  was 
required  to  go  away,  and  refused,  whereupon  he  removed  her  in 
defense  of  his  possession,  using  no  more  force  than  was  necessary. 
To  maintain  this  plea  the  defendants  must  be  prepared  to  show  that 
the  defendant  Harland  had  lawfully  acquired  possession,  which, 
from  the  reason  already  stated,  I  think  he  had  not,  if  force  was  em- 
ployed to  obtain  it. 

It  is  quite  unnecessary  to  say  whether,  if  the  defendant  had 
quietly  entered  and  obtained  possession  of  the  house  while  the  plain- 
tiff's wife  remained  in  possession  of  her  apartment,  he  could  have 
justified  turning  her  out  by  force.-  The  passage  referred  to  in  Ba- 
con's Abr.,  tit.  Forcible  Entry  and  Detainer  (B),  treats  the  force  1 
employed  in  turning  a  party  out  as  making  the  original  entry,  I 
though  peaceable,  a  forcible  entry  within  the  meaning  of  the  statute.?^ 

In  the  present  case  there  was  evidence  tending  to  show  that  the 
entry  of  the  defendant  was  made  with  a  strong  hand,  and  accom- 
panied with  such  acts  of  violence  as  to  bring  the  case  within  the 
prohibition  of  the  statute  of  5  Rich.  II.  But  this  evidence  appears 
to  have  been  considered  by  the  learned  judge  as  immaterial,  for  he 


=  See  Edzvick  v.  Hazvkcs,  18  Ch.  Div.  199  (1881). 


924 


NEWTON    r.    IIARLAND. 


said  the  only  question?  were,  whether  the  rooms  were  let  for  a  cer- 
tain term,  whether  the  term  was  over,  and,  if  so,  whether  the  plain- 
tiff, when  required,  would  not  go  out.  If  that  was  proved,  he  said, 
the  verdict  in  law  must  be  for  the  defendant. 

The  direction  appears  to  me  to  be  incorrect,  and  that  there 
ought  therefore  to  be  a  new  trial. 

CoLTMAN,  J.  Having  the  misfortune  in  this  case  to  differ  from 
the  rest  of  the  court,  it  is  right  that  I  should  state  the  grounds  of 
my  opinion ;  but  as  the  case  will  go  to  a  new  trial,  and  the  question 
may  be  raised  in  a  more  formal  way  on  the  record,  it  will  be  sufficient 
to  state  them  very  briefly. 

The  law  of  England  recognizes  two  modes  of  asserting  the  right 
to  lands  wrongfully  withheld, — by  entry  and  by  action. 

In  the  cases  in  which  the  remedy  by  entry  was  allowed,  where, 
to  use  the  phrase  so  familiarly  met  with  in  our  old  books,  the  entry 
is  congeable,  the  remedy  by  entry  was  looked  upon  as  favorably  as 
the  remedy  by  action.  The  effect  of  such  entry  is,  that  it  gives  a 
man  seisin,  or  puts  into  immediate  possession  him  that  has  right  of 
entry  on  the  estate,  and  thereby  makes  him  complete  owner ;  3  Bla. 
Com'm.  176.  Agreeably  to  this,  Mr.  Justice  Bayley  said,  in  the  case 
of  Butcher  v.  Butcher,  7  B.  &  C.  399,  'T  think  that  a  party  having 
the  right  to  land  acquires  by  entry  the  lawful  possession  of  it,  and 
may  maintain  trespass  against  any  person  who,  being  in  possession 
at  the  time  of  the  entry,  wrongfully  continues  on  the  land." 

I  am  not  aware  that  any  doubt  exists,  that  after  the  entry  made, 
he  may  turn  any  ordinary  trespasser  off  the  land;  and  I  am  unable 
to  see  any  principle  which  should  prevent  him  from  treating  his 
tenant  at  sufferance  in  the  same  way,  for  such  a  tenant  is  a  mere 
wrongdoer :  Co.  Lit.  57b,  Pike  and  Hassen's  case,  3  Leon.  233,  Sir 
Moil  Finche's  case,  2  Leon.  143. 

But  it  is  said  that  a  person  who  has  a  right  of  entry  ought  to 
enter  peaceably.  The  true  doctrine  on  this  subject  is  stated,  as  I 
apprehend,  correctly,  in  the  case  of  Taylor  v.  Cole,  3  T.  R.  295, 
where  it  is  said:  'Tt  is  true,  persons  having  only  a  right  are  not 
to  assert  that  right  by  force ;  if  any  violence  is  used  it  becomes  the 
subject  of  a  criminal  prosecution."  So,  in  Taunton  v.  Costar,  7  T. 
R.  431,  it  is  said:  "If  the  landlord  had  entered  with  a  strong  hand 
to  dispossess  the  tenant  by  force,  he  might  have  been  indicted  for 
a  forcible  entry;  but  there  can  be  no  doubt  of  his  right  to  enter 
upon  the  land  at  the  expiration  of  the  term." 

For  the  preservation  of  the  peace,  the  law  will  punish  for  the 
forcible  entry ;  but  the  tenant  at  sufferance  being  himself  a  wrong- 
doer, ought  not  to  be  heard  to  complain  in  a  civil  action  for  that 
which  is  the  result  of 'his  own  misconduct  and  injustice. 

The  distinction  between  the  civil  rights  of  a  person  forcibly 
turned  out  of  the  possession  of  land,  and  the  penal  sanctions  by 
Avhich  he  is  protected  from  being  forcibly  dispossessed,  are  drawn 
in  a  marked  way  in  the  cases  in  our  old  books  relating  to  the 
statutes  of  forcible  entry.  Although,  by  those  statutes,  all  forcible 
entries  were  prohibited,  even  by  those  who  had  title  to  enter,  yet 


NEWTOX    V.    IIARLAND,  9^5 

the  party  dispossessed  could  maintain  no  action  on  the  statutes. 
This  is  pointedly  laid  down  in  the  Year  Book,  9  H.  6,  19,  15  H.  7,  17, 
F.  N.  B.  248  H.,  vide  post  669. 

On  these  grounds  I  am  of  opinion  that,  although  the  defendant, 
if  guilty  of  a  forcible  entry,  is  responsible  for  it  in  the  way  of  a 
criminal  prosecution,  yet  that  as  against  the  plaintiffs,  who  are 
wrongdoers,  and  altogether  without  title,  he  has  obtained  by  his 
entry  a  lawful  possession,  and  may  justify  in  a  civil  action  the  re- 
moving them,  in  like  manner  as  in  the  case  of  any  other  trespasser.^ 

Erskine,  J.  There  are,  it  is  true,  many  cases,  some  of  which 
were  cited  at  the  argument,  in  which  it  has  been  held  that  no  action 
for  trespass,  quare  clausiim  f regit,  will  lie  at  the  suit  of  a  tenant 
against  the  landlord  for  a  forcible  entry  after  the  expiration  of  the 
term.  The  earlier  authorities  upon  this  point  are  collected  in  Dal- 
ton's  Justice,  c.  129,  p.  431,  and  the  same  doctrine  is  clearly  estab- 
lished by  the  cases  of  Taylor  v.  Cole,  3  T.  R.  292,  Taunton  v.  Cos- 

^  Accord:  Pollen  v.  Brewer,  7  C.  B.  (N.  S.)  371  (1859)  ;  Beattie  v.  Mair, 
L.  R.  10  Irish  208  (1882)  ;  Tribble  v.  Frame,  7  J.  J.  Marsh.  599  (Ky.  1834), 
scmble;  Sampson  v.  Henry,  13  Pick.  36  (Mass.  1832),  though  it  was  held  that 
an  action  would  lie  for  personal  injuries  inflicted  during  the  eviction;  but  see 
Low  V.  Elwcll,  121  Mass.  309  (1876);  Curtis  v.  Galvin,  1  Allen  215  (Mass. 
1861);  Coughlin  v.  Gray,  131  Mass.  56  (1881),  semble;  Fulir  v.  Dean, 
26  Mo.  116  (1857);  Sterling  v.  Warden,  51  N.  H.  217  (1871);  Hyatt  v. 
ll/ood,  4  Johns.  150  (N.  Y.  1809)  ;  Ovcrdeer  v.  Lewis,  1  W.  &  S.  90  (Pa. 
1841)  ;  and  Adams  v.  Adams,  7  Phila.  160  (Pa.  1869),  though  this  is  held  in 
Frick  V.  Fiscus,  164  Pa.  St.  623  (1891),  to  apply  only  when  the  plaintiff  is  the 
defendant's  tenant  at  will;  Rush  v.  Aiken  Mfg.  Co.,  58  S.  Car.  145  (1900)  ; 
Roberts  v.  Tarver,  1  Lea  441  (Tenn.  1878). 

Contra:  Larkin  v.  Avery,  23  Conn.  304  (1854),  scmble;  Entehnan  v.  Ha- 
good,  95  Ga.  390  (1894)  ;  Moore  v.  Boyd,  24  Maine  242  (1844)  ;  Emerson  v. 
Sturgeon,  59  Mo.  404  (1875),  compare  Fuhr  v.  Dean,  26  Mo.  116  (1857); 
Frick  V.  Fiscus,  164  Pa.  St.  623  (1891),  a  mortgagor  in  possession  may  main- 
tain trespass  quare  clausum  frcgit  against  a  purchaser  at  sheriff's  sale  under 
the  mortgage  if  the  latter  forciblv  dispossess  him;  but  see  Coughlin  v.  Gray, 
131  Mass.  56  (1881),  contra;  Dustin  v.  Cowdry,  23  Vt.  631  (1851)  ;  IVhitta- 
kerv.  Perry,  38  Vt.  107  (1865). 

In  Rceder  v.  Purdy,  41  111.  279  (1866),  it  is  held  that  while  trespass  quare 
clausum  fregit  lies  in  such  case,  yet  only  nominal  or  punitive  damages  can  be 
recovered,  compensatory  damages  being  allowed  only  for  the  attendant  injury 
t:>  the  plaintiff's  person  or  personal  propertv;  accord:  Dcdrlore  v.  Harring- 
ton, 70  111.  251  (1873)  ;  Mosselcr  v.  Deavcr,  106  N.  Car.  494  (1890)  ;  while  in 
McDonald  v.  Light  foot,  Morris  450  (Iowa,  1845),  it  was  held  that  the  fact 
that  the  defendant  had  the  right  to  enter,  while  no  defense  in  trespass  quare 
clausum  frcgit,  could  be  shown  in  mitigation  of  the  damages.  So  trespass  dc 
bonis  asportatis  will  not  lie  for  the  loss  of  the  wrongful  possession  of 
property,  though  forcibly  retaken  by  the  owner,  Mills  v.  IVooters,  59  111. 
234  (1871);  Cleveland,  Cincinnati  &  St.  L.  R.  Co.  v.  Moline  Plow  Co.,  13 
Ind.  App.  225  (1895),  nor  can  such  a  taking  constitute  special  damage,  Bcaitie 
V.  Mair,  L.  R.  10  Ir.  208  (1882).  If  the  wrongful  taker  has  incorporated 
the  chattel  with  his  own  from  which  it  cannot  be  separated  without  injury 
thereto,  the  true  owner  may  none  the  less  retake  it  peaceably  without  liability 
for  the  necessary  injury  to  the  wrongdoer's  property,  White  v.  Twiichell,  25 
Vt.  620  (1853),  in  which  it  was  further  held  that  the  owner  need  not  notify 
the  wrongdoer  of  the  retaking,  though  it  made  the  structure  from  which  it 
was  taken  unsafe  for  use,  and  was  not  liable  for  personal  injury  to  the 
wrongful  taker  due  to  his  using  the  structure  in  ignorance  of  the  change  in 
its  condition,  but  see  Corby  v.  Hill,  ante. 


926  NEWTON    V.    IIARLAND. 

tar,  7  T.  R.  431,  Argent  v.  Durranf,  8  T.  R.  403,  Turner  v.  Mey- 
mott,  I  Bingh.  158,  7  Moore,  574.  But  then  the  reason  for  this  is 
also  given,  namely,  that  the  plaintiff,  having  no  title  to  the  posses- 
sion as  against  the  landlord,  can  have  no  right  of  action  against 
him  as  a  trespasser  for  entering  upon  his  own  land,  even  with  a 
force,  for,  although  the  law  had  been  violated  by  the  defendant,  for 
which  he  was  liable  to  be  punished  under  a  criminal  prosecution, 
no  right  of  the  plaintiff  had  been  infringed,  and  no  injury  had  been 
sustained  by  him  for  which  he  could  be  entitled  to  compensation 
in  damages. 

But  in  the  case  now  before  the  court  the  plaintiffs  do  not  seek 
to  recover  damages  for  any  supposed  trespass  upon  their  posses- 
sion of  the  rooms;  but  they  seek  a  compensation  for  a  personal 
injury,  and  they  deny  that  the  defendant  had  by  his  entry  entitled 
himself  to  treat  them  as  trespassers. 

By  the  5  R.  2  stat.  1.  c.  8.,  it  is  enacted,  "that  none  from  hence- 
forth make  any  entry  into  any  lands  and  tenements  but  in  case  when 
entry  is  given  by  law,  and  in  such  case  with  strong  hand,  nor  with 
multitude  of  people,  but  only  in  peaceable  and  easy  manner."  It  is 
true  that  the  punishment  of  fine  and  imprisonment  is  expressly 
added  as  the  statutable  consequence  of  a  violation  of  this  prohibi- 
tion. Yet,  inasmuch  as  the  act  is  directly  prohibited,  the  act  itself 
is  made  unlawful,  even  if  it  were  not  already  so  at  common  law; 
and  it  seems  to  me,  therefore,  to  follow  as  a  consequence  that  a 
landlord,  under  the  circumstances  of  this  case,  though  he  has  a  right 
of  entry,  must,  in  order  to  reinvest  himself  with  the  lawful  posses- 
sion of  premises  held  over  by  his  tenant,  exercise  his  right  of  entry 
peaceably;  and  that  he  cannot  found  a  legal  right  to  remove  the 
tenant  upon  the  illegal  act  of  a  forcible  possession. 

And  this  opinion  is  much  fortified  by  the  various  provisions 
made  by  the  legislature  to  facilitate  the  recovery  of  premises 
wrongfully  held  over  by  tenants  after  the  expiration  of  their  terms, 
and  especially  by  stat.  i  G.  4,  c.  87,  i  &  2  Vict.  c.  74,  and  56  G. 
3,  c.  88,  for  Ireland  ;  and  I  cannot  but  apprehend  that,  if  it  were  once 
established  at  law  that  a  landlord  might,  in  all  cases  where  his  ten- 
ant holds  over,  enter  by  force  upon  the  premises  and  expel  the 
tenant,  and  thereby  subject  himself  to  no  greater  risk  than  the  peril 
of  an  indictment  for  a  forcible  entry,  under  which  no  restitution 
could  be  awarded,  the  peace  of  the  country  would  be  endangered 
by  the  frequent  resort  to  their  summary  proceedings ;  and  there- 
fore, though  I  have  entertained  much  doubt  upon  the  point,  I  am 
anxious  that  thi.s  question  should  be  placed  in  such  a  shape  as  may 
bring  it  under  the  consideration  of  all  the  judges,  which  will  prob- 
ably be  the  result  of  sending  the  case  down  to  a  new  trial. 

I  am  of  opinion,  therefore,  for  the  reasons  which  I  have  al- 
ready given,  that  the  rule  for  a  new  trial  should  be  made  absolute. 

Rule  absolute.* 


*The  later  English  cases  are  accord,  notwithstanding  the  dicta  of  Parke 
and  Alderson  BB.  in  Harvey  v.  Brydgcs,  14  M.  &  W.  437  (1845),  in  which 
they  adhere  to  the  opinions  expressed  by  them  as  trial  judges  in  Newton  v. 


BLADES   Z'.    HIGGS.  927 

(b)     Recaption  of  personal  property. 


U 


^ 


BLADES  V.  HIGGS. 
Court  of  Common  Pleas,  1861.     10  Common  Bench  Reports  (N.  S.),  713. 

The  declaration  charged  that  the  defendants  assaulted  and  beat 
and  pushed  about  the  plaintiff,  and  took  from  him  his  goods,  that 
is  to  say,  dead  rabbits. 

The  deTendants  pleaded,  amongst  other  pleas, — thirdly,  as  to 
the  assaulting,  beating,  and  pushing  about  the  plaintiff,  that  the 
plaintiff,  at  the  said  time  then,  &c.,  had  wrongfully  in  his  posses- 
sion certain  dead  rabbits  of  and  belonging  to  the  Marquis  of  Exeter  ; 
that  the  said  rabbits  were  then  in  the  possession  of  the  plaintiff 
without  the  leave  and  license  and  against  the  will  of  the  said  mar- 


Harland,  and  express  disapproval  of  the  action  of  the  Court  in  Banc.  In  Bed- 
dall  V.  Maitland,  L.  R.  17  Ch.  Div.  174  (1881),  Fry,  J.,  held  that  while  an  occu- 
pant of  another's  premises  by  the  latter's  permission,  who  retained  possession 
after  the  permission  was  withdrawn,  could  not  recover  damages  for  his  forci- 
ble eviction  (his  possession  being  unlawful),  he  might  recover  for  injuries 
to  his  furniture  in  removing  it,  since  such  removal  could  only  be  justified 
by  a  lawful  possession,  which  was  not  gained  by  the  forcible  evictor,  see  ac- 
cord, Millar  v.  Long,  75  L.  T.  728  (1883),  where  it  vvas  held  that  the  dispos- 
sessed occupant  could  recover  for  injury  done  to  his  chattels;  but  see  Beattic 
V.  Mair,  L.  R.  10  Jr.  208  (1882),  to  the  efifect  that  he  cannot  recover  for  the 
asportation  or  injury  to  chattels  owned  by  the  defendant.  In  Edwick  v. 
Hawkes,  18  Ch.  Div.  199  (1881),  a  landlord,  having  a  right  of  entry  which 
he  might  have  enforced  by  proper  means,  having  peaceably  entered  the  prem- 
ises wrongfully  held  by  his  tenant,  was  held  liable  for  an  assault  committed 
in  forcibly  expelling  the  tenant's  wife  therefrom,  such  subsequent  conduct 
making  the  entry,  though  otherwise  peaceable,  a  forcible  entry. 

These  later  cases,  says  Sir  Frederick  Pollock,  Law  of  Torts,  9tli  Ed. 
397,  "makes  the  ingenious  distinction — certainly  not  made  by  the  majority 
(in  Nezi'ton  v.  Harland) — of  collateral  wrongs  from  the  forcible  eviction 
itself";  but  see  Edwick  v.  Hawkes,  18  Ch.  Div.  199  (1881),  where  the  assault 
was  the  very  violence  which  made  the  entry,  otherwise  peaceable  and  lawful, 
illegal  as  a  forcible  entry. 

Where  it  is  held  that  one,  forcibly  ousted  from  his  wrongful  possession 
by  the  owner,  having  the  right  of  entry,  may  maintain  trespass  quarc  clausuui 
f regit,  see  note  2,  snl^ra,  a  fortiori,  he  can  recover  for  injuries  to  his  person 
or  the  removal  or  injury  to  his  chattels,  either  as  aggravation  of  the  trespass 
or  in  an  action  of  assault  and  battery  or  trespass  de  bonis  asportatis. 

In  some  jurisdictions  in  which  it  is  either  held  that  no  action  of  trespass 
qiiare  clausum  fregit  lies,  or  where  the  point  has  not  been  decided,  it  is  held 
that  an  action  may  be  maintained  for  injuries  to  the  person  or  for  the  removal 
of  or  injury  to  chattels;  Denver  &  R.  G.  R.  Co.  v.  Harris,  122  U.  S.  597 
(1886)  ;  Hvatt  v.  Wood,  4  Johns.  150  (N.  Y.  1809),  p.  160:  Bristor  v.  Burr, 
120  N.  Y.  427  (1890)  ;  Pitford  v.  Armstrong,  Wright  94  (Ohio,  1832)  ;  and 
see  Sampson  v.  Henry,  13  Pick.  36  (Mass.  1832)  ;  and,  for  a  valuable  critical 
review  for  the  cases  upon  the  whole  subject  prior  to  1870,  see  2  Am.  L.  Rev. 
429. 

Though  one  has  by  irrevocable  license,  express  or  implied,  the  right  to 
enter  another's  premises  to  recover  his  chaattels  or  to  take  possession  of  his 
property  situate  thereon,  he  cannot  justify  an  assault  to  overcome  resistance 
to  the  immediate  exercise  of  such  license,  Churchill  v.  Hulbert,  110  Mass.  42 
(1872^  ;  Drury  v.  Hervev,  126  Mass.  519  (1879)  ;  predericksen  v.  Singer  Mfg. 
Co.,  38  Minn.  356  (1888). 


928  BLADES   Z'.    HIGGS. 

quis ;  and  that  the  plaintiff  was  about  wrongfully  and  unlawfully 
to  take  and  carry  away  the  said  rabbits  and  convert  the  same  to  his 
own  use ;  whereupon  the  defendants,  as  the  servants  of  the  mar- 
quis, and  by  his  command,  requested  the  plaintiff  to  refrain  from 
carrying  away  and  converting  the  same  rabbits,  and  to  quit  pos- 
session thereof  to  the  defendants  as  such  servants,  which  the  plain- 
tiff refused  to  do ;  and  that  thereupon  the  defendants,  as  the  serv- 
ants of  the  said  marquis,  and  by  his  command,  gently  laid  their 
hands  upon  the  plaintiff,  and  took  the  said  rabbits  from  him,  using 
no  more  force  than  necessary :  which  were  the  alleged  trespasses 
in  the  declaration  mentioned,  &c.     Demurrer  and  joinder. 

Erle,  C.  J.  The  declaration  Avas  in  this  case  for  an  assault 
and  battery.  The  substance  of  the  justification  was,  that,  the  plain- 
tiff having  wrongfully  in  his  possession  rabbits  belonging  to  the 
defendants  (we  consider  the  servants  here  the  same  as  the  master), 
and  being  about  to  carry  them  away,  the  defendants  requested  him 
to  refrain,  and,  on  his  refusal,  moUitur  mones  imposuerunt,  and 
used  no  more  force  than  was  necessary  to  take  the  rabbits  from 
him.  To  this  the  plaintiff  has  demurred,  and  thereby  admits  that 
he  was  domg  the  wrong,  and  that  the  defendants  were  maintaining 
the  right,  as  alleged:  and  he  contends  they  are  not  justified  in  using 
necessary  force,  on  account  of  the  danger  to  the  public  peace:  but 
he  adduces  no  authority  to  support  his  contention.  The  defendants 
likewise  have  failed  to  adduce  any  case  where  the  justification  was 
supported  without  an  allegation  to  explain  how  the  plaintiff  took 
the  property  of  the  defendant  and  became  the  holder  thereof.^  But 
the  principles  of  law  are  in  our  judgments  decisive  to  show  that 
the  plea  is  good,  although  that  allegation  is  not  made. 

If  the  defendants  had  actual  possession  of  the  chattels,  and 
the  plaintiff  took  them  from  them  against  their  will,  it  is  not  dis- 
puted that  the  defendants  might  justify  using  the  force  sufficient 
to  defend  their  right  and  retake  the  chattels :  and  we  think  there 
is  no  substantial  distinction  between  that  case  and  the  present : 
for,  if  the  defendants  were  the  owners  of  the  chattels,  and  entitled 
to  possession  of  them,  and  the  plaintiff  wrongfully  detained  them 
from  them  after  request,  the  defendants  in  law  would  have  the  pos- 
session,^  and  the  plaintiff's  wrongful  detention  against  the  request 
of  the  defendants  would  be  the  same  violation  of  the  right  of  prop- 
erty as  the  taking  of  the  chattels  out  of  the  actual  possession  of  the 
owner. 

It  has  been  decided  that  the  owner  of  land  entitled  to  the  pos- 
session may  enter  thereon  and  use  force  sufficient  to  remove  a 
wrongdoer  therefrom.     In  respect  of  land,  as  well  as  chattels,  the 

^In  Anon.,  Keilwey  92,  pi.  4  (1506),  the  plaintiff  having  refused  to  give 
up  a  horse  which  he  had  taken  from  the  defendant's  possession  (how  long 
before  does  not  appear)  the  defendant  said  if  the  plaintiff  did  not  return  it 
he  would  take  it  in  spite  of  him,  and  taking  up  a  staff  came  towards  the  plain- 
tiff, this  was  held  an  assault  justifiable. 

'So  in  Hodgeden  v.  Hubbard,  18  Vt.  504  (1846),  the  plaintiff,  who  had 
obtained  a  stove  by  fraud,  was  held  to  have  gained  no  lawful  possession 
thereby. 


BOWMAX    V.    BROWN.  929 

wrongdoers  have  argued  that  they  ought  to  be  allowed  to  keep 
what  they  are  wrongfully  holding,  and  that  the  owner  cannot  use 
force  to  defend  his  property,  but  must  bring  his  action,  lest  the 
peace  should  be  endangered  if  force  was  justified:  see  Neivton  v. 
Harland,  i  AI.  &  G.  644,  i  Scott  N.  R.  474.  But,  in  respect  of  land, 
that  argument  has  been  overruled  in  Harvey  v.  Brydges,  14  M.  & 
W.  442.  Parke,  B.,  says :  "where  a  breach  of  the  peace  is  com- 
mitted by  a  freeholder,  who,  in  order  to  get  possession  of  his  land, 
assaults  a  person  wrongfully  holding  possession  of  it  against  his 
will,  although  the  freeholder  may  be  responsible  to  the  public  in  the 
shape  of  an  indictment  for  a  forcible  entry,  he  is  not  liable  to  the 
other  party.  I  cannot  see  how  it  is  possible  to  doubt  that  it  is  a 
perfectly  good  justification  to  say  that  the  plaintifif  was  in  possession 
of  the  land  against  the  will  of  the  defendant,  who  was  owner,  and 
that  he  entered  upon  it  accordingly ;  even  though  in  so  doing  a 
breach  of  the  peace  was  committed." 

In  our  opinion,  all  that  is  so  said  of  the  right  of  property  in 
land,  applies  in  principle  to  a  right  of  property  in  a  chattel,  and 
supports  the  present  justification.  If  the  owner  was  compellable 
by  law  to  seek  redress  by  action  for  a  violation  of  his  right  of 
property,  the  remedy  would  be  often  worse  than  the  mischief,  and 
the  law  would  aggravate  the  Injury  instead  of  redressing  \X.? ^--"^ 

For  these  reasons,  our  judgment  is  for  the  defendants. 

Judgment  for  the  defendants.* 


BOWMAN  V.  BROWN  AND  HALL. 

Supreme  Court  of  Vermont,  1882.     55   rcrntont  Reports,  184. 

Trespass.  The  third  count  was  for  assault  and  battery.  Plea, 
general  issue.  Trial  by  court,  Windsor  County,  May  Term,  1881, 
Taft,  J.,  presiding.    Judgment  for  the  plaintiff. 

*"If  a  man  meets  another  in  the  highway,  and  by  false  and  fraudulent 
misrepresentation  induced  that  other  to  surrender  to  him  the  possession  of 
his  horse  and  carriage,  and  when  he  has  so  obtained  possession,  shows  a  dif- 
ferent purpose,  by  word  or  act,  to  appropriate  it  to  his  own  use,  and  to  escape 
with  it,  surely  it  will  not  be  held  the  person  so  deprived  of  property  is  com- 
pelled to  stand  with  folded  arms  and  see  the  fellow  so  escape  beyond  the 
reach  of  the  law,  or  a  hope  of  a  restitution  of  his  property,  or  be  guilty  of  a 
violation  of  law  in  attempting  to  recover  possession." — Turney,  J.,  in  Ander- 
son &  Austin  v.  State,  6  Baxter  608  (Tenn.  1872). 

*  Hopkins  V.  Dickson,  59  N.  H.  235  (1879).  the  property  had  been  wrong- 
fully taken,  how  long  before  not  stated,  from  the  defendant's  possession ; 
Sterling  v.  Warden,  51  N.  H.  217  (1871),  a  postmaster  forcibly  took  posses- 
sion of  post-office  property,  wrongfully  withheld  by  his  predecessor.  The 
right  of  an  owner  to  forcibly  retake  his  chattel,  wrongfully  taken  or  with- 
held from  him,  is  stated  broadly  and  without  qualification  in  Baldivin  v.  Hav- 
den,  6  Conn.  453  (1827);  Barr  v.  Post,  56  Nebr.  698  (1898),  semble :  and 
Winter  v.  Atkinson,  92  111.  App.  162  (1900).  though  there  the  effort  to  retake 
the  goods  was  made  immediately  upon  the  plaintiff's  refusal  to  give  them  up. 
In  JVinter  v.  Atkinson,  92  111.  App.  162  (1900),  a  master  was  held  entitled  to 
retake  by  force,  from  a  servant  about  to  leave  his  employment,  a  book  con- 
taining a  list  of  customers,  which  had  been   entrusted  to  the  servant   for 


930 


BOWMAN    Z'.    BROWN. 


It  appeared  on  trial  that  the  defendant's  cow  was  kept  in  a 
pasture  near  the  plaintiff's  enclosure,  with  an  arable  field  between 
the  pasture  and  enclosure ;  that  there  was  a  fence  between  the  field 
and  pasture,  but  by  agreement  of  the  owners  none  between  the 
field  and  said  enclosure ;  that  the  cow  escaped  into  this  field  and 
thence  on  to  the  plaintiff's  land,  where  he  seized  her,  tied  her  to  a 
post  and  was  about  to  drive  her  to  the  pound,  when  said  Hall,  a 
servant  of  said  Brown,  and  by  his  direction,  forcibly  took  the  cow 
from  the  plaintiff ;  that  said  Brown,  when  he  learned  where  his  cow 
was,  went  to  the  plaintiff  and  proposed  to  pay  for  any  damage  that 
had  been  done  by  the  cow ;  that  the  plaintiff  said  all  he  wanted  was 
that  the  defendant  should  take  the  cow  and  take  care  of  her,  but 
said  Brown  did  not  give  him  to  understand  that  he  would  do  so, 
but  proceeded  to  untie  the  cow,  and  finally  directed  his  servant, 
Hall,  as  stated  above.  The  testimony  was  conflicting ;  but  the  court 
found  that  the  plaintiff  did  not  relinquish  possession  of  the  cow, 
or  his  intent  to  impound  her,  and  that  he  was  guilty  of  no  unrea- 
sonable delay  in  carrying  his  design  to  impound  her  into  execution ; 
and  further  found  that  the  plaintiff"  in  his  attempt  to  retain  posses- 
sion of  the  cow  was  injured  in  his  person,  by  reason  of  the  acts 
of  the  defendants,  and  suffered  damages  in  consequence  thereof 
to  the  amount  of  sixty  dollars. 

Veazey,  J.  The  recovery  below  was  had,  under  the  count  for 
assault  and  battery,  for  injuries  received  by  the  plaintiff  while  pro- 
ceeding to  impound  the  cow  of  the  defendant  Brown  and  in  resist- 
ing the  assaults  of  the  defendants  in  their  efforts  to  rescue  the  cow. 
The  defendants  claimed  they  had  the  right  to  retake  the  cow  and  to 
use  such  force  as  was  necessary  for  that  purpose,  for  the  alleged 
reason  that  under  the  facts  found  the  plaintiff  had  no  legal  right 
to  impound  the  cow.  The  plaintiff  had  not  obtained  possession 
wrongfully  or  with  any  fraudulent  purpose.  The  cow  was  in  his 
enclosure  and  he  was  proceeding  to  deal  with  it  as  he  thought  he 
had  a  right  to  do.  Defendant's  counsel  insist  that  the  rule  is  estab- 
lished in  this  state  to  the  effect  that  a  person  who  is  out  of  pos- 
session may  lawfully  "fight  himself"  into  legal  possession.  This 
rule  has  not  been  expressly  adopted   except  in  cases  where  the 


use  in  his  service,  and  which  the  latter  refused  to  give  up,  claiming  it  as 
his  own.  The  facts  in  Barr  v.  Post.  56  Nebr.  698  (1898).  were  similar,  in 
both  cases  the  right  of  recaption  from  one  wrongfully  holding  a  chattel 
from  the  rightful  owner  is  stated  generally,  but  see  the  suggestion  in  Davis 
V.  Whitridge,  2  Strob.  232  (S.  Car.  1847),  that  as  the  possession  of  the  serv- 
ant is  the  possession  of  the  owner,  his  master,  the  latter  has  a  right  to 
forcible  recaption  against  him,  though  he  might  not  have  such  a  right 
against  a  stranger  wrongfully  withholding  possession ;  but,  where  the  serv- 
ant claims  the  chattel  as  his  own,  it  is  held  in  Kirby  v.  Foster,  17  R.  I. 
437  (1891),  that  the  constructive  possession  of  the  master  would  cease  and 
the  servant's  retention  would  be  adverse  and  in  his  own  right.  The  right 
of  a  master  to  retake  his  goods  from  a  servant  or  workman  to  whom  they 
have  been  entrusted  for  the  purpose  of  the  service  or  the  work,  and  who 
wrongfully  refuses  to  give  them  up  upon  demand,  is  denied  in  Moiison  v. 
Lews,  123  Wis.  583  (1905),  and  in  Winter  v.  Beebe,  126  Wis.  379  (1905). 


GYRE   V.    CULVER.  93 1 

owner  was  dispossessed  by  force  or  fraud^  and  the  pursuit  was 
fresh.  2  Hodgeden  v.  Hubbard,  i8  Vt.  504.  And  such  cases  have 
been  somewhat  criticised  but  not  overruled.  Dustin  v.  Cowdry,  et 
al.,  23  Vt.  631. 

The  judgment  of  the  County  Court  is  affirmed. 

A~oC^  

0  GYRE  V.  CULVER. 

Supreme  Court  of  New  York,  1867.    47  Barbour's  N.  Y.  Sup.  Ct.  Rep.,  592. 

This  is  an  appeal  by  the  plaintifif  from  an  order  granting  a  new 
trial.  The  action  was  for  assault  and  battery.  The  defense  was 
that  the  plaintiff  was  trespassing  on  the  defendant's  land,  or  land 
of  John  Culver,  of  which  he  had  charge  as  agent  for  the  owner, 
stealing  wood ;  that  he  ordered  her  off  the  premises ;  that  she  re- 

^  Accord:  State  v.  Dooley,  121  I\Io.  591  (1891),  where  the  pursuit  was 
in  fact  fresh,  the  court  holding  that  forcible  recaption  is  permissible,  though 
not  at  the  precise  time  and  place  of  the  wrongful  taking;  Shcllabarger  v. 
Morris,  115  Mo.  App.  556  (1905),  here  the  chattel,  a  straying  chicken,  was 
on  the  plaintiff's  premises,  and  the  right  to  enter  such  premises  is  also  in- 
volved; Stanley  v.  Payne,  78  Vt.  235  (1905).  where  the  defendant  in  giving 
up  his  tenancy  of  a  farm,  agreed  with  his  landlord  that  a  box  of  his  should 
remain  in  the  barn  during  the  spring,  and  that  he  might  remove  it  there- 
after. The  plaintiff,  who  succeeded  him  as  tenant,  knew  nothing  of  this 
agreement  and  when  the  defendant  came  to  remove  the  box,  refused  to  give 
it  up  till  he  had  consulted  the  landlord,  and,  the  defendant  insisting  on 
taking  it,  injured  the  plaintiff  in  the  scuffle. 

In  Kirby  v.  Foster,  17  R.  I.  437  (1891),  the  plaintiff  was  given  money 
by  the  agent  of  his  employer  to  pay  off  the  latter's  help,  and  acting  under  the 
advice  of  counsel,  pocketed  $50  to  repay  money  which  he  claimed  had 
i3een  improperly  deducted  from  his  salary,  and  returned  the  balance,  saying 
he  was  now  paid  and  would  leave.  The  defendants,  the  agent  and  a  fellow- 
employe,  thereupon  seized  him  and  in  the  struggle  injured  him.  The  court 
held  that  the  right  of  forcible  recaption  existed  only  where  there  was  "a 
purely  wrongful  taking  or  conversion,  without  a  claim  of  right";  and  in 
Sabre  v.  Mott,  88  Fed.  780'  (Circ.  Ct.  of  Vt.  1898),  it  was  held  that  the  de- 
fendant was  not  justified  in  using  force,  much  less  in  committing  an  as- 
sault, to  retake  property  which  had  been  in  the  plaintiff's  peaceable  posses- 
sion for  a  day  and  "the  title  being  in  dispute."  In  many  cases,  however, 
forcible  recaption  has  been  allowed  though  the  property  had  been  taken 
or  its  return  denied  under  a  bona  fide  claim  of  title,  ComnionwealtJi  v.  Don- 
ahue, 148  Mass.  529  (1889),  the  facts  of  which  are  in  substance  similar  to 
those  in  Kirby  v.  Foster,  17  R.  I.  437  (1891)  ;  State  v.  Elliot,  11  N.  H.  540 
(1841);  State  v.  Doolev,  121  Mo.  591  (1894);  Winter  v.  Atkinson,  92  111. 
App.  162  (1900);  Hamilton  v.  Arnold,  116  Mich.  684  (1898),  and  Johnson 
V.  Perry,  56  Vt.  703  (1884).  In  State  v.  Elliot  and  State  v.  Dooley,  it  is 
however,  said  that  less  force  must  be  used  when  there  is  an  honest  claim 
of  title  than  when  the  taking  is  felonious,  while  in  Harris  v.  Marco,  16 
S.  Car.  575  (1881),  the  court,  while  intimating  that  a  man  may  resist  the 
taking  of  his  property  within  his  view,  though  not  in  his  manual  possession, 
even  by  an  assault  and  battery,  if  the  taking  be  felonious  or  without  claim  of 
right,  he  may  not  commit  a  breach  of  the  peace  in  an  attempt  to  retake  his 
property  even  taken  within  his  view  under  a  claim  of  right. 

■Accord:  Shcllabarger  v.  Morris,  115  Mo.  App.  556  (1905);  State  v. 
Elliot,  11  N.  H.  540  (1841),  p.  545;  and  see  Sir  Frederick  Pollock's  comment 
upon  Blade  v.  Higgs,  "but  probably  that  case  goes  too  far  in  allowing  re- 
caption by  force,  except  perhaps  on  fresh  pursuit." — Law  of  Torts,  9th  Ed. 
386,  note  (h),  399,  note  (g). 


932 


GYRE   Z'.    CULVER. 


fused  to  go,  that  defendant  thereupon  ejected  her,  using  no  more 
force  than  was  necessary — which  is  the  assault  and  battery  com- 
plained of.  On  the  trial  the  defendant  gave  evidence  tending  to 
establish  this  defense.  The  court  charged  the  jury  "the  defendant 
is  strictly  or  technically  liable  to  respond  in  this  action.  Any  such 
interference  with  her  person  cannot  be  justified  even  if  she  was 
trespassing,  &c."  To  this  the  defendant  excepted.  The  defendant 
thereupon  also  requested  the  court  to  charge  that  if  the  plaintiff 
was  trespassing  upon  the  farm  of  the  defendant's  father  at  the 
time  of  the  taking  of  the  wood  in  question,  and  if  on  being  required 
to  leave  the  premises,  the  plaintiff  refused,  the  defendant  had  a  right 
to  use  sufficient  force  to  eject  her  from  the  premises,  and  that  if 
he  used  no  more  force  than  was  sufficient  for  the  purpose,  the 
plaintiff  was  not  entitled  to  recover.  The  court  refused  so  to 
charge,  and  the  defendant  excepted. 

The  court  further  charged  the  jury  to  "find  for  the  plaintiff 
such  a  verdict  as  you  think  will  be  just  and  proper,"'  and  they 
found  $100. 

JoHNSO'X,  J.  I  am  of  the  opinion  that  the  new  trial  in  this 
case  was  properly  granted.  Where  one  person  has  unlawfully  en- 
tered upon  the  premises  of  another  and  possessed  himself^_oi  the 
goods  of  the  owner,  such  owner,  or  his  agent,  may  sureTyT while 
upon  his  own  premises,  prevent  the  wrongdoer  from  taking  .such 
goods  away,  and  may  lawfully  use  so  much  force  as  may  bp  nerps- 
sary  to  retain  his  property  and  prevent  itsj;emoval  out  of  his  cus- 
tody and  beyofld  his  reach.  The  law  does  not  oblige  the  owner  of 
property  to  stand  idly  by  and  see  a  thief  or  trespasser  take  his 
property  from  his  premises,  or  limit  him  to  mere  verbal  remon- 


So  it  is  said  by  Holmes.  J.,  in  Commonwealth  v.  Donahue,  148  Mass. 
529  (1889),  that  "it  is  settled  by  ancient  and  modern  authority  that  .  . 
a  man  may  defend  or  regain  his  temporarily  interrupted  possession  by  the 
use  of  reasonable  force,  short  of  wounding  or  the  employment  of  a  dan- 
gerous weapon."  This  is  quoted  with  approval  in  Hemingway  v.  Hcming- 
zvay,  58  Conn.  443  (1890).  In  the  first  case  the  defendant  offered  to  rtluni 
goods  purchased  or  to  pay  a  sum  less  than  that  asked  for  them,  the  plaintiff 
accepted  the  lesser  sum  but  immediately  repudiated  the  condition  and  de- 
manded the  balance,  thereupon  the  defendant  forcibly  repossessed  himself 
of  the  money.  In  the  latter  case  the  plaintiff",  a  director  of  a  company,  and 
as  such  entitled  to  access  to  its  letter  book,  took  memoranda  from  it  for 
the  benefit  of  a  rival  company,  whereupon  the  defendant,  the  secretary,  on 
the  plaintift"'s  refusal  to  give  it  up,  then  and  there  took  it  from  hini  by  force. 

In  the  following  cases  in  which  the  right  of  forcible  recaption  is  rec- 
ognized without  qualification,  the  possession  was  in  fact  only  momentarily 
uninterrupted  and  the  defendant  tried  to  regain  his  property  as  soon  as  he 
knew  that  it  was  wrongfully  taken  or  withheld,  Baldwin  v.  Haydcn.  6  Conn. 
453  (1827),  plaintiff  was  carrying  off  a  letter  just  before  given  to  him  to  read; 
Rex  V.  Milton,  1  M.  &  M.  107  (1827).  plaintiff  refused  to  give  up  a  warrant 
which  had  been  handed  to  him  upon  his  request  to  see  it;  State  v.  Elliot,  11 
X.  H.  540  (1841)  ;  Carter  v.  Sutherland,  52  ISlich.  597  (1894)  ;  so  in  Wright 
v.  Southern  Exfyress  Co.,  80  Fed.  85  (1897);  Hodgeden  \\  Hubbard.  18  Vt. 
504  (1846)  ;  Anderson  &  Austin  v.  State,  6  Baxter  608  (Tenn.  1872)  ;  Com- 
monzvealth  v.  Donahue,  148  Mass.  529  (1889).  the  defendant  sought  to  re- 
take his  property  as  soon  as  he  discovered  the  fraud  by  which  it  had  been 
obtained  or  the  repudiation  of  the  condition  upon  which  it  had  been  given. 


GYRE   V.    CULVER.  933 

strance.  _He_mavact  promptly,  and  whether  he  juay  nse  force-or 
not  in  thefirstjnslaiice^and  what  degreeof  force,  depends  upon  the 
exigency  of  the  particular_case.^  The  mere  taking  of  the  property 
By~tHe^^mer,  under  such  circumstances,  from  the  custody  of  the 
wrongdoer,  without  other  force  or  violence,  would  not  constitute 
an  assault  and  battery.-  If  the  taking,  or  the  attempt  to  take,  is 
resisted  by  the  trespasser,^  and  he  persists  in  his  attempts  to  retain 
possession,  and  carry  the.  property  off,  then  the  owner  may  law- 
fully use  so  much  additional  force  as  may  be  necessary  to  prevent 
it.  Such  being  the  rule  of  law,  both  the  charge  and  the  refusal  to 
charge  as  requested,  were  erroneous.  The  learned  judge  charged 
the  jury  that  the  defendant  was  not  justifiable  in  using  the  force 
he  did,  conceding  his  own  version  of  the  matter  to  be  in  all  respects 
correct.  The  evidence  was  conflicting,  and  the  difference  between 
the  plaintiff's  version  of  the  affair  and  that  of  the  defendant  was 
quite  marked,  if  not  wholly  irreconcilable.  But,  upon  the  hypothesis 
of  the  entire  correctness  of  the  defendant's  testimony,  it  clearly 
cannot  be  said,  as  matter  of  law,  that  any  unnecessary  or  unjustifi- 
able force  was  used  to  prevent  the  removal  of  the  property ;  espe- 
cially in  view  of  the  persistent  eft'orts  of  the  plaintiff  to  take  the 
property  away  after  it  had  been  taken  from  her  by  the  defendant. 
The  request  to  charge  the  jury  embodied  a  proposition  strictly  in 
accordance  with  the  law,  as  I  understand  the  rule,  and  quite  per- 
tinent to  the  case,  upon  the  evidence.  The  exception  to  the  refusal 
to  so  charge  was  well  taken.  The  order  granting  a  new  trial  must 
therefore  be  affirmed.* 


^Accord:  Carter  v.  Sutherland,  52  Mich.  597  (1884);  Menqedocht  v. 
Van  Dorn,  48  Nebr.  880  (1896)  ;  Kiinkle  v.  State,  32  Ind.  220  (1869).  The 
force  must  be  reasonable  and,  unless  the  taking  be  felonious — State  v.  Doo- 
Icy,  121  yio.  591  (1894) — must  stop  short  of  wounding  or  the  use  of  dan- 
gerous weapons,  Coininonwealth  v.  Donahue,  148  Alass.  529  (1889)  ;  Kunkle 
V.  State,  32  Ind.  220  (1869).  It  is  no  defense  to  an  action  of  false  imprison- 
ment that  the  plaintiff  was  detained  and  imprisoned  for  the  purpose  of 
forcing  him  to  eive  up  the  wrongful  possession  of  the  defendant's  chattel, 
Harz'ev  v.  Mavne.  It.  Rep.  6  C.  L.  417  (1872)  ;  Daiis  v.  IVhitridge,  2  Strob. 
232  (S.  Car.  1847). 

"In  Hodgeden  v.  Hubbard,  18  Vt.  504  (1846),  emphasis  is  laid  on  the 
fact  that  "to  obtain  possession  of  the  property  in  question,  no  violence  to 
the  person  of  the  plaintiff  was  necessary,  or  required,  unless  from  his  re- 
sistance." It  was  not  like  property  carried  about  the  person,  as  a  watch 
or  monev;  accord'  State  v.  Elliot,  11  X.  H.  540  (1841)  ;  Johnson  v.  Perry, 
56  Vt.  703   (1884). 

^  "The  person  in  wrongful  possession  has  no  right  to  resist  the  attempt 
of  the  defendant  to  regain  his  property" ;  cases  cited  in  Note  2,  supra.  But 
see  Sims  v.  Reed,  12  B.  Alonr.  51  (1851),  holding  that  one  may  use  force 
to  defend  his  peaceable  though  wrongful  possession  even  against  the  owner. 

*  Accord:  Johnson  v.  Perry,  56  Vt.  703  (1884),  the  plaintiff  had  gone 
on  the  defendant's  premises  and  taken  slabs  belonging  to  the  latter  and  had 
loaded  them  upon  his  sled  and  was  about  to  remove  them,  when  the  de- 
fendant interfered  and  threw  the  slabs  from  the  sled,  using  such  force 
as  was  necessary  to  overcome  the  plaintiff's  opposition  thereto;  Hamilton 
V.  Arnold,  116  Mich.  684  (1898).  the  plaintiff  had  picked  plums  on  land, 
found  by  the  jury  to  belong  to  the  defendant,  but  honestly  claimed  by  the 
plaintiff's  husband,  and  was  attempting  to  carrv  them  away;  and  see  JViuter 
v.  Atkinson,  92  111.  App  162  (1900),  and  Baldwin  v.  Hayden,  6  Conn.  453 
(1827). 


934  ANDRE   V.    JOHNSON. 

ANDRE  V.  JOHNSON. 
Supreme  Court  of  Indiana,  1843.     6  Blackford's  Ind.  Reps.,  375. 

Dewev,  J,  This  was  an  action  of  trespass  by  Johnson  against 
Andre.  The  first  count  of  the  declaration  alleges  thac  the  defendant 
assaulted  the  plaintiff,  forced  and  pushed  him  with  great  violence 
off  his  horse,  threw  him  down  upon  the  ground,  struck  him  violent- 
ly, and  with  great  force,  insult,  and  abuse,  wrested  the  horse,  sad- 
dle, and  bridle  of  the  plaintiff  from  his  possession.  The  second 
count  is  for  taking  and  carrying  away  the  horse,  saddle,  and  bridle 
of  the  plaintiff. 

The  defendant  pleaded,  i.  The  general  issue.  2.  That  the 
supposed  trespasses  in  the  first  and  second  counts  mentioned  were 
one  and  the  same,  and  not  other  or  different  trespasses ;  that  as  to 
the  force,  &c.,  and  all  the  supposed  trespasses  in  the  declaration  men- 
tioned, except  the  forcing  the  plaintiff  off  his  horse,  pushing  him 
down  upon  the  ground,  wresting  the  horse,  saddle,  and  bridle  from 
him,  carrying  them  away,  the  defendant  was  not  guilty,  and  put 
himself  upon  the  country.  And  as  to  the  residue  of  the  supposed 
trespasses,  actio  non,  because  the  horse  was  the  property  of  the 
defendant;  that  the  plaintiff,  with  his  own  saddle  and  bridle,  was 
"tortiously"  mounted  upon  the  horse  in  a  public  street ;  that  the  de- 
fendant requested  him  to  dismount  and  give  up  the  horse;  that  he 
refused;  whereupon  the  defendant,  for  the  purpose  of  obtaining 
possession  of  the  horse,  "gently  laid  his  hands  upon  the  plaintiff" 
and  dismounted  him;  that  the  defendant  took  possession  of  the 
horse,  and  in  so  doing  necessarily  forced  and  pushed  the  plaintiff 
down  upon  the  ground ;  and  that  he  necessarily  removed  the  saddle 
and  bridle  to  a  small  and  convenient  distance,  (specifying  the 
place),  where  he  left  them  for  the  use  of  the  plaintiff,  doing  them 
no  needless  injurv;  which  were  the  same,  &c. 

The  plaintiff  replied  dc  injuria,  &c.,  upon  which  there  was 
issue.  Verdict  for  the  plaintiff.  Motion  for  a  new  trial  overruled, 
and  judgment  on  the  verdict. 

It  is  contended  that  the  court  erred  in  overruling  the  motion 
for  a  new  trial. 

It  appears  by  the  record,  that  the  plaintiff  fully  established  by 
testimony  the  assault  and  battery  as  laid  in  the  first  count,  except 
the  striking  of  him  by  the  defendant.  Whether  the  defendant 
proved  the  facts  set  forth  in  his  special  plea  we  have  not  inquired, 
because  if  he  did,  they  constituted  no  justification  of  that  part  of 
the  assault  and  battery  to  which  they  refer.  The  plea  shows  no 
force  on  the  part  of  the  plaintiff  in  obtaining  possession  of  the 
horse,  nor  at  what  time  Ke  obtained  it.  It  simply  states,  in  refer- 
ence to  this  matter,  that  he  was  tortiously  possessed  in  a  public 
street,  and  that  he  refused  to  give  up  the  horse  on  the  demand  of 
the  defendant.  It  is  not  lawful  for  the  owner  of  property  to  take 
it  from  the  peaceable  though  wrongful  possession  of  another,  by 


CHAMBERS    V.    BEDELL.  935 

means  of  violence  upon  his  person ;  the  remedy  lies  in  a  resort  to 
law,  not  to  force. ^    3  Bl.  Comm.  4. 


4 


CHA^IBERS  V.  BEDELL. 
Supreme  Court  of  Pcnnsyliania,  1841.    2  Watts  &  Sergeant's  Penn.  Rep.,  225. 

Error  to  the  District  Court  of  Allegheny  county. 

Andrew  Bedell  against  William  Chambers  and  others.  This 
was  an  action  of  trespass  qiiare  clansmn  fregit,  in  which  the  de- 
fendant pleaded  not  guilty. 

The  parties  were  owners  of  adjoining  tracts  of  land,  and  dis- 
puted about  their  partition  line.  The  plaintiff  cut  a  quantity  ot 
rails  upon  the  land  in  dispute,  and  hauled  them  to  another  part  of 
his  land,  which  was  not  in  dispute.  The  defendant  went  there  in 
the  night  and  hauled  the  rails  away,  for  which  this  action  of  tres- 
pass was  brought. 

It  appeared  clearly  on  the  trial  that  the  land  where  the  rails 
were  cut  belonged  to  the  plaintiff.  The  court  below,  in  answer  to 
a  point  put  by  the  defendants,  instructed  the  jury,  that  whether 
the  land  belonged  to  the  plaintiff  or  not,  he  was  at  least  entitled  to 
recover  nominal  damages ;  but  that  the  evidence  clearly  and  con- 
clusively established  the  plaintiff's  title,  and  he  was  therefore  en- 
titled to  recover  the  value  of  the  property  taken  in  damages. 

Per  curiam.  It  is  certain,  that  if  the  chattel  of  one  man  be 
put  upon  the  land  of  another  by  the  fault  of  the  owner  of  the  chattel, 
and  not  by  the  fault  or  with  the  connivance  of  the  owner  of  the 
land,  the  owner  of  the  chattel  cannot  enter  to  retake  it;  but  that 
it  be  put  there  without  the  fault  or  consent  of  either  party,  the 
owner  of  the  chattel  may  enter  and  take  it  peaceably,^  after  de- 


\4ccord:  Bobb  v.  Bosworth,  2  Littell's  Selected  Cases,  81  (Ky.  1808); 
Barnes  v.  Martin,  15  Wis.  240  (1862);  Bliss  v.  Johnson,  11  N.  Y.  529 
(1878),  semble;  Street  v.  Sinclair,  71  Ala.  110  (1881),  semhle ;  Watson  v. 
Rinderknecht,  82  Minn.  235  (1901);  and  see  Stanley  v.  Payne,  78  Vt.  235 
(1905),  though  there  neither  the  original  possession  nor  the  detention,  that 
of  a  bailee  pending  consultation  with  his  bailor,  was  wrongful,  and  see 
Fredericksen  v.  Singer  Mfg.  Co.,  38  Minn.  356  (1888). 

In  Hendrix  V.  State,  50  Ala.  148  (1873),  it  was  held  that  it  was  no  de- 
fense to  an  indictment  for  assault  and  battery,  committed  in  an  attempt  to 
obtain  possession  of  a  horse,  ridden  by  the  prosecutor,  that  the  horse  had 
been  stolen  from  the  defendant  some  time  before,  by  a  person  not  named. 
And  in  Sabre  v.  Moit,  88  Fed.  780  (Circ.  Ct.  of  Vt.  1898),  it  was  held  that 
the  defendant  was  not  justified  "in  using  force,  much  less  in  committing  an 
assault  to  retake  property  which  had  been  in  the  plaintiff's  peaceable  pos- 
session for  a  day,"  though  here,  as  in  Bobb  v.  Bosworth,  2  Littell's  Selected 
Cases,  81   (Ky.  1808),  the  title  was  in  dispute. 

'^Accord:  Richardson  v.  Anthony,  12  Vt.  273  (1840),  the  heifers  in  ques- 
tion had  been  for  a  year  in  the  peaceable  possession  of  the  plaintiff,  who  for- 
bade the  defendant  to  enter  and  retake  them :  there  being  no  averment  or 
evidence  how  they  had  come  into  the  plaintiff's  oossession.  it  was  held  that 
"no  fault  is  attributable  to  either  party  so  far,"  but  they,  being  detained 
"under  wrongful   claim  of   title  after   request  to   return   them  or  to  allow 


936  CHAMBERS   V.    BEDELL. 

mand  and  refusal  of  permission,  repairing,  however,  any  damage 
which  may  be  occasioned  by  his  entry.-  So,  also,  where  the  parties 
are  in  equal  default,  for  instance,  by  omitting  to  repair  a  partition 
fence,  by  reason  of  which  the  cattle  of  the  one  happens  to  stray 
into  the  close  of  the  other.^  But  all  the  books  agree,  that  where 
a  chattel  escapes  from  the  possession  of  its  owner  by  his  consent, 
exclusive  negligence,  or  other  default,  he  cannot  pursue  it  into  the 
close  of  another,  without  becoming  a  trespasser  by  his  entry  ;*  but 
that  he  may  lawfully  enter  and  retake  his  property,  where  it  has 
been  wrongfully  taken  or  received  by  the  owner  of  the  land.^    Now, 

the  owner  to  remove  them,  were  in  his  enclosure,  when  they  were  taken, 
by  his  own  wrong."  Contra:  Salisbury  v.  Green,  17  R.  I.  758  (1892),  where 
also  the  plaintiff  had  had  long  continued  peaceable  possession  of  chattels 
under  claim  of  right;  Blake  v.  Jerome,  14  Johns.  406  (N.  Y.  1817)  ;  Roach 
V.  Damron,  2  Humph.  425  (Tenn.  1841)  ;  Chess  v.  Kelly,  2,Z  Blackf.  438  (Ind. 
1834);  and  see  Chase  v.  Jefferson,  1  Houst.  257  (Del.  1856).  The  right  to 
enter  after  demand  and  refusal,  when  the  chattels  come  on  the  land  by  their 
owner's  wrong  or  consent,  is  denied  in  Ncwkirk  v.  Sahler,  9  Barb.  652  (N. 
Y.  1850).  The  mere  fact  that  the  defendant's  goods  are  on  the  plaintiff's 
land,  gives  no  right  to  enter,  at  least  before  demand  and  refusal,  so  a  plea 
merely  alleging  the  defendant's  goods  to  be  on  the  plaintiff's  premises  without 
showing  how  they  came  there,  was  held  in  Aiiihonv  v.  Hanex,  8  Bing.  186 
(1832),  to  be  bad  on  demurrer;  Goff  y.  Kalts,  15  Wend.  550  (N.  Y.  1836)  ; 
Salisbury  v.  Green,  and  other  cases  cited  above  as  contra  to  Richardson  v. 
Anthony,  12  Vt.  273  (1840). 

^In  Anthony  v.  Haney,  8  Bing.  186  (1832),  it  was  intimated  that  no 
matter  how  the  goods  came  on  the  premises  of  the  owner  "if  the  occupier 
refused  to  deliver  them  up  or  make  no  answer  to  the  owner's  demand,  at 
any  rate  the  owner  might  in  such  case  enter  and  take  his  property,  subject 
to  the  payment  of  any  damage  he  might  commit."  This  is  sharply  criticised 
by  Judge  Cooley,  law  of  Torts,  50  n.  2;  "If,"  he  says,  "he  were  liable  in 
damages  for  the  entry,  it  must  be  because  it  is  unlawful ;  and  in  that  case 
it  might  be  resisted.  There  can  be  no  such  absurdity  as  a  right  of  entry 
and  a  co-existent  right  to  resist  the  entry." — but  see  I'incent  v.  Lake  Erie 
Co.,  cited  in  Note  3  to  Ploof  v.  Putnam,  post.  The  right  of  entry  was  al- 
lowed in  Richardson  v.  Anthony,  12  Vt.  273  (1840),  without  any  such  con- 
dition. 

M  Dane's  Abr.  C.  134,  §13,  cited  in  Wheelden  v.  Lowell,  50  Maine  499 
(1862). 

*  So  where  the  owner  has  himself  put  the  goods  on  the  other's  land. 
(Nezvkirk  v.  Sabler,  9  Barb.  652  (N.  Y.  1850),  or  has  consented  to  their 
being  put  or  kept  thereon,  Crocker  v.  Carson,  2)2)  Maine  436  (1851)  ;  Roach 
V.  Damron,  2  Humph.  425  (Tenn.  1841)  ;  or  has  bailed  the  goods  to  such 
other,  McLeod  v.  Jones,  105  Mass.  403  (1870) — but  see  Madden  v.  Brown, 
8  App.  Div.  454  (N.  Y.  1896), — though  he  has  the  right  to  their  possession, 
he  cannot  enter  to  take  them  without  the  owner's  permission,  unless  the 
nature  of  the  dealings  between  the  parties  requires  the  implication  of  a  li- 
cense to  enter.  Where  one  sells,  Xettleton  v.  Sikes,  8  Mete.  34  (Mass.  1834)  ; 
Newkirk  v.  Sabler,  9  Barb.  652  (N.  Y.  1850);  McLeod  v.  Jones.  105  Mass. 
403  (1870),  semble, — but  compare  Crocker  v.  Carson,  33  Maine  436  (1851), 
or  mortgages,  Zimmler  v.  Manning,  2  S.  C.  R.  (N.  S.  W.)  235  {\B)63) , semble ; 
McNeal  v.  Emerson,  15  Gray  384  (Mass.  1860),  goods  on  his  premises,  there 
is  an  implied  license  to  enter  such  premises  to  remove  them,  but  not  to  enter 
other  premises  to  which  they  may  have  been  removed ;  McLeod  v.  Jones. 
105  Mass.  403  (1870).  and  such  license  only  binds  the  vendor  or  mortgagor. 
Roach  v.  Damron,  2  Humph.  425  (Tenn.  1841)  ;  Zimmler  v.  Manning,  2  S.  C. 
R.  (N.  S.  W.)  235  (1863). 

°In  Patrick  v.  Colerick.  3  M.  &  W.  483  (1838).  Parke.  B.,  says,  "that 
when  a  party  places  the  goods  of  another  upon  his  own  close,  he  gives  to 


CHAMBERS    V.    BEDELL. 


937 


if  the  property  in  the  rails  in  question  had  been  in  the  defendant, 
the  plaintiff  who  had  piled  them  up  on  his  land,  could  not  have  re- 
covered even  nominal  damages  for  the  defendant's  entry  to  remove 
them ;  and  in  this  respect  the  direction  would  have  been  wrong. 
But  it  was  in  clear  and  uncontradicted  proof,  that  the  defendant, 
Chambers,  had  not  even  a  colourable  title  to  the  land  where  the  rails 
were  grown  and  made,  and  consequently  not  even  a  colourable  title 
to  enter  on  the  plaintiff's  land  in  order  to  carry  them  away ;  and 
the  inaccuracy  of  the  charge,  in  this  abstract  particular,  was  there- 
fore immaterial. 

Judgment  atfirmed.'^ 


the  owner  an  implied  license  to  entei'  for  the  purpose  of  recaption."  But 
the  plea  held  good  alleged  a  wrongful  taking  by  the  plaintiff  from  the  de- 
fendant's possession  and  a  fresh  pursuit. 

When  the  plaintiff  has  wrongfullv  taken  the  goods,  the  right  of  entrv 
is  generally  allowed;  Anon.,  Y.  B.  9  Edw.  IV,  35,  pi.  10  (1469),  per  Little- 
ton, J.;  Salisburv  v.  Green,  17  R.  I.  758  (1892),  semblc;  Madden  v.  Brozvu, 
8  App.  Div.  454  (N.  Y.  1896)-;  Wheelden  v.  Lozvell,  50'  Maine  499  (1862): 
goods  obtained  by  fraudulent  purchase;  McLeod  v.  Jones,  105  Mass.  403 
(1870),  semblc;  Murray  v.  M'Neil,  1  N.  S.  W.  W.  N.  136  (1885),  semble, 
Graham  v.  Green,  10  New  Brunswick  (5  Allen)  330  (1802),  and  if  the  taker 
refuse  to  give  them  up,  the  owner  in  order  to  retake  them  may  break  into 
his  close  to  obtain  them.  In  Pollyes  Case,  Godbolt  282  (1620),  it  is  said  that  in 
such  case  the  owner  may  justify  an  entry  upon  the  wrongful  taker's  land 
but  not  his  house,  for  that  is  "his  castle,"  into  which  another  man  may  not 
enter  without  his  consent";  accord:  Cutler  v.  Smith,  17  111.  252  (1870)."  But 
see  Anon.,  (1638),  Clayton,  65  (pi.  Ill),  where  the  defendant,  whose  goods 
had  been  wrongfully  distrained,  was  held  justified  in  entering  the  wrong- 
doer's house  to  retake  them. 

So  where  the  goods  are  taken  by  a  third  party  and  placed  with  the  plain- 
tiff's consent  on  his  land.  Chapman  v.  Thumblethorp,  Cro.  Eliz.  329  (1594), 
in  which,  while  the  court  stated  broadly  that  whenever  the  defendant's  beasts 
are  taken  from  him  by  wrong  and  are  not  out  of  his  possession  by  his  own 
delivery,  he  may  justify  the  taking  of  them  in  any  place  he  may  find  them, 
the  plea  which  was  held  good  averred  that  the  wrongful  taker  placed  the 
goods  on  the  plaintiff's  close  with  his  assent.  Accord:  Zimmler  v.  Manninq, 
2  S.  C.  R.  (N.  S.  W.)  235  (1863). 

If  goods,  originally  stolen,  CoUonih  v.  Taylor,  9  Hum.ph.  689  (Tenn. 
1849),  semble,  or  transferred  in  fraud  of  the  owner's  rights,  Murray  v.  M'Xcil, 
1  N.  S.  W.  W.  N.  136  (1885),  are  in  the  possession  of  a  bona  fide  holder, 
the  owner  though  entitled  to  the  possession,  cannot  justify  an  entry  upon 
the  premises  of  the  purchaser  for  the  purpose  of  retaking  them. 

®"If  a  man  wrongfully  imprisons  me  in  his  house,  I  may  break  the  win- 
dows and  hedge  to  escape,  &c.,  for  in  all  these  cases  it  is  the  plaintilfs 
wrong";  Littleton,  J.,  Y.  B.,  9  Edw.  IV,  34,  pi.  10  (1469).  So  one,  who  is 
in  possession  of  goods  upon  the  premises  of  another,  may  justify  breaking 
doors  or  gates  to  remove  them,  if  the  occupier  of  the  premises  attempts  to 
unlawfully  detain  them  by  locking  the  gates,  Robson  v.  Jones,  2  Bailev  4 
(S.  Car.  1830). 

One  upon  whose  lands  another's  goods  have  been  placed  or  allowed  to 
remain,  may  justify  taking  them  and  putting  them  upon  the  owner's  prem- 
ises, and  in  so  doing  is  not  guilty  of  either  trespass  quare  clausum  freqit  or 
de  bonis  asportatis.  Cole  v.  Maunder.  2  RoUe.  Abr.  548  (1635),  Rea  v. 
Sheward,  2  M.  &  W.  424  (1837),  but  he  must  do  so  in  a  reasonable  manner 
and  put  them  in  a  place  where  they  will  cause  no  unnecessary  damage  or  in- 
convenience, Burnham  v.  Jenness,  54  Vt.  272  (1881). 


938  CUNNINGHAM    f.    YEOMAN. 

CUNNINGHAM  v.  YEOMAN. 
Supreme  Court  of  New  South  Wales,  1868.    7  Sup.  Ct.  Rep.  N.  S.  IV.,  149. 

Action  of  trespass  quare  clausnm  fregit.  Declaration  in  sub- 
stance alleged  that  defendant  broke  into  and  entered  plaintifif's 
dwelling  house  with  his  servants,  and  broke  and  pulled  down  the 
doors  of  same,  and  with  the  servants  remained  therein  a  long  time. 
Plea,  that  before  and  at  the  time  of  the  alleged  grievance  the  de- 
fendant was  possessed  of  certain  horses  which  had  been  feloniously 
stolen  from  him  by  certain  persons  and  were  by  or  with  the  priv- 
ity of  the  plaintiff  placed  upon  the  premises  of  the  plaintiff,  and 
that  the  defendant  being  informed  and  having  probable  cause  to 
believe  that  the  horses  were  on  the  said  premises,  made  pursuit  after 
his  horses  and  quietly  and  peaceably  entered  with  his  servants  to 
view  the  said  horses  so  belonging  to  him  and  carry  them  away  as 
he  lawfully  might,  doing  no  unnecessary  damage.  Demurrer  and 
joinder. 

Stephen,  C.  J.  If  a  chattel  be  feloniously  taken,  and  put  on 
a  third  person's  premises  by  the  latter's  consent,  the  latter,  although 
not  cognizant  of  the  felony,  justly  incurs  the  risk  of  the  thing  turn- 
ing out  to  be  stolen ;  and  for  the  sake  of  public  justice,  and  the  re- 
pressing of  crime,  the  owner  of  the  property  has,  and  ought  to  have 
at  any  time,  the  right  of  entry  on  such  person's  premises,  and  of  re- 
taking the  chattel.  I  see  no  reason  why  the  right  of  recaption 
should  be  limited  to  cases  where  there  is  fresh  pursuit.  It  has  been 
held  that  in  cases  of  trespass,  hue  and  cry  makes  no  difference. 
Public  policy,  which  supersedes  all  questions  of  private  interest, 
requires  that  every  felony  should  be  punished,  and  that  an  oppor- 
tunity of  prosecuting  the  thief  to  conviction  should  be  facilitated 
by  the  production  of  the  stolen  property ;  and  I  think  this  dis- 
tinguishes the  cases  of  goods  taken  by  trespass  and  by  felony.  If 
a  stolen  horse  is  on  land  not  with  the  consent  of  the  owner  of  the 
land,  an  entry  by  the  owner  of  the  horse  on  such  land  may  be  un- 
lawful ;^  but  if  the  owner  of  the  land  has  allowed  a  stolen  horse  to 
be  placed  there,  why  may  not  the  owner  of  the  horse  in  the  interest 
of  the  public  enter  and  retake  him?  Baldivin  v.  Noaks,  in  2  Lut- 
wyche  1309,  supports  this  proposition ;  and  in  that  case  there  is  no 
mention  of  fresh  pursuit.  The  authority  of  Blackstone,  cited  and 
approved  of  by  Lord  Chief  Justice  Tindal,  in  Anthony  v.  Haney, 
implies  that  the  right  of  recaption  exists  where  the  goods  have  been 
feloniously  stolen.  I  doubt  whether  a  search  warrant  was  neces- 
sary under  such  circumstances.    Such  an  authority  would  be  neces- 


'In  Wehh  v.  Bevan,  6  M.  Ss  G.  1055  (1844),  the  plea  held  good  alleged 
merely  that  his  recently  stolen  mare  was  in  the  plaintiff's  stable ;  but  see 
the  reporter's  note  (b),  in  which  he  says:  "The  entry  upon  the  plaintiff's 
land  would  appear  to  be  lawful  if  the  defendant's  goods  were  brought  there 
with  the  privity  of  the  plaintiff  or  it  would  seem,  if  brought  there  by  any 
person  who  v/as  upon  the  close  with  the  permission  of  the  owner. 


CUNNINGHAM    V.    YEOMAN.  939 

sary,  if  it  turned  out  that  the  goods  were  not  on  the  premises ;  nor 
could  outer  doors  be  broken  open,  unless  under  such  a  warrant. - 

As  to  the  breaking  of  doors  for  the  purpose,  that  may  or  may 
not  be  justifiable.  But  that  question  does  not  yet  arise ;  for,  as 
complained  of  in  the  declaration,  it  is  matter  incidental  only  to  the 
entry,  and  therefore  is  matter  of  aggravation  merely.  If  the  plain- 
tiff desires  to  make  it  matter  of  substantial  complaint,  he  can  new- 
assign. 

I  am  not  clear  whether,  if  the  horse  here  had  been  taken  by 
trespass  merely,  but  put  on  the  plaintiff's  premises  by  his  consent, 
after  such  trespass,  the  authority  of  Zimmler  v.  Manning  would 
apply. 

Cheeke,  J.,  concurred. 

Faucett,  J.  The  breaking  and  pulling  down  the  doors,  and 
the  remaining  in  the  plaintiff's  house  for  a  long  time,  is,  it  is  clear, 
only  matter  of  aggravation ;  and  the  pleader  who  drew  the  de- 
murrer evidently  was  of  this  opinion ;  for  the  plea  is  not  stated  to 
be  insufficient  on  any  such  ground. 

I  give  no  opinion  whether  the  entry  is  justifiable  if  the  horse 
has  been  taken  by  trespass ;  but  I  have  no  hesitation  in  acting  on 
the  authority  of  Higgins  v.  Andrezvs,  which  is  referred  to  in  2  Lut- 
wyche,  and  has  been  constantly  recognized  in  the  Abridgments,  and 
which  is  relied  on  in  the  passage  from  Blackstone's  Commentaries, 
quoted  with  approval  by  Lord  Chief  Justice  Tindal  in  Anthony  v. 
Haney.  Where  goods  have  been  stolen,  the  owner  of  the  land 
where  those  goods  are  placed  with  his  privity,  although  ignorant 
that  the  felony  has  been  committed,^  cannot  complain  if  the 
owner  of  the  goods  enters  upon  his  land  and  retakes  them.  No 
notice  or  demand  is  in  such  case  necessary.  The  rule  is  founded  on 
public  policy,  and  that  the  ends  of  justice  may  not  be  defeated.  I 
think  it  is  not  necessary  to  allege  fresh  pursuit  ;*  for  it  is  plain  that 
it  may  be  some  time  before  it  is  known  where  the  stolen  property 
is  to  be  found. 

Judgment  for  the  defendant."^ 

"See  Pollyes  case,  note  5  to  Chambers  v.  Bcddell,  ante. 

^As  to  whether  it  is  necessary,  when  goods  are  tortionsly  taken  by  a 
third  party  and  placed  by  him  on  the  plaintiff's  land,  to  show  not  merely  that 
the  plaintiff  assented  to  the  goods  being  placed  there,  but  that  he  did  so 
knowing  them  to  be  tortionsly  taken,  see  Baldwin  v.  Noaks,  2  Lutw.  1309 
(1684)  ;  Wells,  J.,  in  McLeod  v.  Jones,  105  ^lass.  403  (1870),  intimating  that 
the  owner  of  the  land  must  be  a  participant  in  the  wrongful  taking;  and 
Bennett,  J.,  dissenting  in  Richardson  v.  Anthony,  12  Vt.  273  (1840),  p.  279,  n 
who  says  that  by  his  consent,  "the  landholder  becomes  a  participant  in  the 
wrong." 

*  Both  wrongful  taking  and  fresh  pursuit  is  held  essential  in  Salisbury 
V.  Green,  17  R.  I.  758  (1892)  ;  compare  Kirby  v.  Foster,  note  to  Blades  v. 
Higgs,  ante. 

Mn  Higgins  v.  Andrews,  2  Rolle.  Abr.  564  (1618).  2  Rolle.  Rep.  55,  it 
is  held  that  I  cannot  justify  entering  another's  house  on  the  common  report 
that  a  third  person,  who  has  wrongfully  torn  up  my  trees,  has  placed  them 
in  such  house  "inasmuch  as  the  taking  away  of  these  trees  annexed  to  the 
freehold  was  not  a  felony  but  only  a  trespass." 

In  Topladye  v.  Stalye,  Style  165   (1649),  it  was  held  a  plea  that  mere 


940  ANONYMOUS. 

(c)     Abatement  of  nuisance. 


ANONYMOUS. 

/n  the  Common  Pleas,  1469.     Year  Book,  9  Edward  IV,  f.  34,  pi.  10. 

Writ  of  right.  Choke.  J.  The  main  question  is,  whether  the 
pulling  up  of  the  stakes  of  the  pond  was  lawful ;  for,  if  so,  the 
tearing  down  of  the  house  was  lawful,  for  he  says  in  his  plea  that 
he  could  not  have  pulled  up  the  stakes  without  the  house  falling 
down. 

Fairfax.  It  seems  that  he  shall  be  put  to  his  action  of  tres- 
pass or  nuisance,  for  he  could  not  enter  the  freehold  of  the  plain- 
tiff;  and,  sir,  if  a  man  has  a  sewer  running  from  his  place  in  Lon- 
don to  the  Thames,  and  it  is  stopped  up,  he  cannot  break  the  soil 
to  clear  it,  but  is  put  to  his  action. 

Littleton,  J.  It  seems  that  he  may  well  pull  up  the  stakes, 
for  they  were  erected  to  his  nuisance ;  and  if  he  had  waited  to  bring 
an  action,  his  land  might  have  been  surrounded,  and  he  would  have 
lost  the  profits  of  his  mill  meanwhile,^  and  it  seems  to  me  that  the 

common  rumor  that  stolen  sheep  were  on  the  plaintiff's  land  would  not  justi- 
fy an  entry,  since  it  did  not  show  how  they  came  thereon,  whether  as  strays 
or  by  theft  of  the  plaintiff,  or  placed  there  by  the  thief  with  the  plaintiff's 
consent. 

^  But  one  abating  a  nuisance,  private  or  public,  is  liable  for  any  damage 
done  which  is  not  necessary  to  effect  the  abatement,  Gates  v.  Blincoe,  2  Dana 
158  (Ky.  1834)  ;  Calef  v.  Thomas,  81  111.  478  (1876)  :  Indianapolis  v.  Miller, 
27  Ind.  394  (1866)  ;  Moffett  v.  Brewer,  1  G.  Greene  348  (Iowa  1848)  ;  Chilli- 
cothe  V.  Bryan,  103  Mo.  App.  409  (1903),  though  he  's  not  bound  to  do  so 
in  the  manner  most  convenient  to  the  owner  of  the  nuisance,  it  being  the 
interests  of  the  person  aggrieved  which  must  prevail,  Great  Falls  Co.  v. 
Worster,  IS  N.  H.  412  (1844)  ;  McKeesport  Sawmill  Co.  v.  Pennsvlvania  Co., 
122  Fed.  184  (1903). 

Only  so  much  of  the  offending  things  as  constitute  the  nuisance  can  be 
removed,  Moffett  v.  Brewer,  1  G.  Greene  348  (Iowa  1848)  :  Moodv  v.  A'l- 
agara,  46  Barb.  649  (N.  Y.  1866)  ;  Dyer  v.  Depni,  5  Whart.  584  (Pa.  1840)  ; 
nor  can  the  offending  structure  be  destroyed,  if  its  removal  will  abate  the 
nuisance.  Smart  v.  Commonwealth,  27  Grat.  950  (Va.  1876),  nor  can  a  stuc- 
ture  be  removed,  Morrison  v.  Marquardt,  24  Iowa  35  (1868).  or  a  pond 
filled  up,  I'inley  v.  Hershey,  41  Iowa  389  (1875),  if  its  off'ensive  character 
can  otherwise  be  remedied.  So  while  one,  over  whose  land  the  branches  of 
a  neighbor's  trees  extend,  may  cut  off  the  intruding  branches,  Grandona  v. 
Lovdal,  70  Cal.  161  (1886)  ;  Robinson  v.  Clapp,  65  Conn.  365  (1895)  ;  Mickey 
V.  Mich.  Cen.  R.  Co.,  96  Mich.  498  (1893),  he  mav  not  cut  down  the  tree?. 
Grandona  v.  Lovdal,  70  Cal.  161  (1886)  ;  Hickex  v.  Mich.  Cen.  R.  Co.,  96 
Mich.  498  (1893). 

So  a  building  cannot  be  destroyed  because  it  is  so  used  as  to  create  a 
nuisance,  "the  remedy  is  to  stop  such  use,"  Woodward,  J.,  in  Barclay  v 
Commonwealth,  25  Pa.  St.  503  (1855)  ;  Earp  v.  Lee,  71  111.  193  (1873)  ;  Br'own 
v.  Perkins,  12  Grav  89  (Mass.  1858):  Stale  v.  Paul,  S  R.  I.  185  (1858); 
State  V.  Keeran,  4  R.  I.  497  (1858)  ;  Moody  v.  Niagara,  46  Barb.  659  (X.  Y. 
1866),  unless  such  use  cannot  be  stopped  save  by  the  destruction  of  the 
building,  Harvey  v.  Dewoody,  18  Ark.  252  (1856),  a  wooden  shanty  fre- 
quented by  vagrants. 

.And  one  assuming  to  abate  a  condition  or  structure  as  a  nuisance,  takes 
the  risk  of  proving  to  the  satisfaction  of  the  jury  that  it  is  in  fact  a  nuisance, 


HARROWER   V.    RITSON.  94I 

entry  upon  the  plaintifif's  land  was  lawful;  to  abate  the  nuisance 
for  the  wrong  done  was  the  wrong  of  the  plaintiff.- 

And  if  water  flows  juxta  villam  and  is  stopped,  any  one  in  the 
vill  may  tear  down  the  obstruction,  &c.,  or  otherwise  the  whole 
vill  would  be  surrounded,  &c.  And  if  a  man  wrongfully  imprisons 
me  in  his  house,  I  may  break  the  windows  and  hedge  to  escape,  &c., 
for  in  all  these  cases  it  is  the  plaintiff's  wrong,  and  so  here. 

Needham,  J,  If  a  man  puts  up  a  house  to  the  nuisance  of  my 
house,  I  may  be  in  my  own  house  or  land  and  pull  down  his  house, 
and  justify  this ;  so  in  this  case  the  defendant  shall  not  be  punished 
for  pulling  down  the  house  nor  removing  the  stakes ;  but  as  to  the 
entry  upon  the  land,  this  action  is  not  brought  for  the  entry,  &c. ; 
wherefore,  &c. ;  but  I  think  the  entry  is  not  lawful. 

Danby,  C.  J.  And,  sir,  in  the  case  at  bar  the  removal  of  the 
stakes  seems  lawful ;  for  supposing  the  defendant  were  tenant  for 
years,  he  could  not  have  an  assize  of  nuisance ;  and  if  he  brought 
trespass  he  would  recover  damage  for  the  wrong  done  before  the 
purchase  of  the  writ,  and  a  nuisance,  notwithstanding  such  suit, 
would  continue;  and  so  it  would  be  mischievous  if  he  could  not 
abate  the  nuisance.  And  the  opinion  of  all  the  judges  was,  that  the 
destruction  of  the  house  was  lawful,  qii(2re  as  to  the  entry. 

Littleton  said  that  Danby  was  of  opinion  that  the  entry  was 
lawful,  &c.,  wherefore,  if  a  man  makes  a  ditch  in  his  land,  by  which 
the  flow  of  water  to  my  mill  is  diminished,  I  may  refill  the  ditch 
with  the  earth  dug  up,  &c.^ 


UyJ^^ 


HARROWER  v.  RITSON. 

Supreme  Court  of  the  State  of  New  York,  1861.    Z7  Barb.  Rep.  301. 

Allen,  J.  The  encroachment  of  the  plaintiff's  fence  upon  the 
highway  was,  it  would  seem,  hardly  disputed  upon  the  trial.  The 
only  question  of  fact  upon  which  conflicting  evidence  was  given 
was  whether  the  fence  was  an  obstruction  to  the  travel,  and  in- 
terfered with  the  use  of  the  road  by  the  public.  And  upon  this 
branch  of  the  case  several  witnesses,  in  behalf  of  the  plaintiff's, 
testified  that  the  fence  torn  down  did  not  and  could  not  interfere 
with  the  travel  west  of  the  angle;  and  all  the  testimony  was  that 

Tissot  V.  Great  Southern  Tel.  Co.,  39  La.  Ann.  996  (1887).  and  sec  Shars- 
wood,  J.,  in  Fields  v.  Stokley,  99  Pa.  St.  306  (1882)  ;  and  Reed  v.  Seeiy,  13 
Pa.  Co.  Ct.  529  (1893),  municipal  officer.s  abating  public  nuisances  without 
authority  of  the  municipal  legislative  councils. 

^Accord:  Mayhew  v.  Burns,  103  Ind.  328  (1885);  Lancaster  Turnpike 
Co.  V.  Rogers,  2  Barr  114  (Pa.  1845),  semble;  Amoskeag  Mfg.  Co.  v.  Good- 
ale,  46  N.  H.  53  (1857)  ;  Larson  v.  Furlong,  63  Wis.  2>22>  (1885). 

^So  in  Y.  B.,  8  Edw.  IV,  5,  pi.  15  (1468),  that  Choke,  J.,  held  that  by 
common  law,  I  may  abate  a  house  upon  another's  land  so  buih  as  to  cause  the 
water  to  run  upon  my  land,  and  Danby  said,  "That  if  water  runs  upon  the 
land  of  M.  and  M.  stops  the  water  from  its  course,  so  that  it  surrounds  my 
land,  I  can  well  abate  that  which  stops  it,  and  to  my  mind  he  shall  not  have 
an  action  for  the  entry  into  his  close,  because  that  is  bv  his  own  wrong." 


942 


HARROWER   Z'.    RITSON. 


at  the  angle  and  with  the  fence  a  single  team  could  easily  and  safely 
pass,  and  that  without  the  fence  two  teams  could  not  pass. 

The  fence  was  undoubtedly,  upon  the  finding  of  the  jury,  an 
encroachment  upon  the  highway,  which  might  have  been  removed 
by  proceedings  under  the  statute,     (i  R.  S.  521.)     It  was  also  a 
public  nuisance,  and  indictable  as  such.     (4  Bl.  Com.  167.)     And 
had  the  plaintiffs  been  indicted  for  erecting  the  nuisance,  the  charge 
of  the  judge  would  have  been  strictly  accurate.     It  would  have 
constituted  no  defense  that  travel  was  not  entirely  obstructed  and 
hindered.     The  public  have  the  right  to  the  entire  width  of  the 
road — a  right  of  passage  in  the  road  to  its  utmost  extent,  unob- 
structed by  any  impediment.     The  plaintiffs  could  not  lawfully  by 
their  fence  render  the  passage  over  the  road  less  convenient  or  safe 
than  it  would  have  been,  but  for  the  encroachment.     (People  v. 
Cunningham,   i  Denio,  524.     King  v.  Russell,  6  East,  427.     Per 
Denio,  Ch.  J.,  Davis  v.  Mayor  of  Nezv  York,  14  N.  Y.  Rep.  524.) 
"Any  permanent  or  habitual  obstruction  in  a  public  street  or  high- 
way is  an  indictable  nuisance,  although  there  be  room  enough  left 
for  carriages  to  pass."     (See  also  Rex  v.  Lord  Grosvenor,  2  Stark. 
511 ;  Queen  v.  Belts,  16  Q.  B.  Rep.  1022.)     If  every  indictable  nui- 
sance*may  be  abated  by  any  one,  upon  his  own  motion,  who  chooses 
to  take  the  law  into  his  own  hands,  the  justification  of  the  defend- 
ants was  completed,  and  the  court  properly  refused  the  instructions 
asked  for,  to  the  effect  that  an  individual  was  not  authorized  to 
abate  the  nuisance  by  the  removal  of  the  fence,  unless  it  interfered 
with  the  use  of  the  road.    The  claim  is  that  the  erection  and  main- 
tenance of  the  nuisance  being  a  misdemeanor,  any  one  may  abate 
it,  as  it  is  for  the  interest  of  the  public  that  it  should  not  exist.     If 
this  is  so,  it  is  the  only  case  where,  in  the  absence  of  any  necessity, 
the  vindication  and  execution'  of  the  law  are  devolved  upon  the 
private  citizen;  and  I  have  found  no  case  that  goes  this  length. 
The  doctrine  would  tend,  manifestly,  to  breaches  of  the  public  peace, 
and  might  lead  to  the  oppression  of  wrongdoers,  which  should  be 
guarded  against.     Private  nuisances  may  be  abated  by  the  indi- 
viduals aggrieved  by  them.     (3  Bl.  Com.  5,  2  Bouv.  Inst.  574.) 
And  public  nuisances  should  only  be  subject  to  abatement  by  one 
especially  aggrieved  by  them.     Blackstone  says :  "If  a  new  gate  be 
erected  across  the  public  highway,  which  is  a  common  nuisance, 
any  of  the  king's  subjects  passing  that  way  may  cut  it  down  and 
destroy  it."     The  reason  assigned  is,  that  the  injury  requires  an 
immediate  remedy.     (3  Black.  Com.  6.)     The  instance  given  is  that 
of  a  total  obstruction  of  the  road  by  the  erection  of  a  gate  across 
it,   rendering   its   destruction   by   the   passerby   a   necessity.      Mr. 
jBroom,  commenting  on  and  explaining  this  passage  from  Black- 
.jjstone,  says  that  to  justify  a  private  individual  in  abating,  on  his 
Mpwn  authority,  such  a  nuisance,  it  must  appear  that  it  does  him  a 
\  special  injury;  and  he  can  only  interfere  with  it  as  far  as  may  be 
I  necessary  to  exercise  his  passing  along  the  highway  with  reasonable 
V     convenience,  and  not  because  the  obstruction  happens  to  be  there. 
vl  (Broom  on  Com.  Law,  250.)     The  Mayor  &c.  of  Colchester  v. 


HARROWER    ■c'.    RITSON.  943 

Brooks,  (7  Q.  B.  Rep.  339)  was  an  action  on  the  case  for  injuring 
the  plaintiff's  oyster  beds  in  a  river,  by  improper  navigation  of  the 
defendant's  vessels.  *  *  *  The  Court  of  Queen's  Bench  held  that 
although  the  oysters  were  placed  in  the  channel  of  a  public  nav- 
igable river  so  as  to  create  a  public  nuisance,  a  person  navigating 
was  not  justified  in  damaging  such  property  by  running  his  vessel 
against  it,  if  he  had  room  to  pass  without  so  doing ;  for  an  individual 
could  not  abate  a  nuisance  if  he  was  not  otherwise  injured  by  it 
than  as  one  of  the  public ;  and  therefore  the  fact  that  such  property 
was  a  nuisance  was  no  excuse   for  running  upon  it  negligently.  . 
Lord  Denman,  Ch.  J.,  delivered  the  opinion  of  the  courE7~3TTd  says" 
if  there  was  abundance  of  room  and  of  water  for  the  vessel  to  have 
passed  up  without  going  near  the  alleged  nuisance,  "however  wrong- 
ful the  act  of  the  plaintiff,  yet,  as  the  defendant  sustained  no  special 
inconvenience  thereby,  he  certainly  could  not  have  been  justified 
in  wilfully  infringing  upon  or  destroying  the  oysters,  even  for  the 
purpose  of  abating  the  nuisance."    Again,  "In  the  case  of  a  private 
nuisance,  the  individual  aggrieved  may  abate,  (3  Black.  Com.  5,) 
so  as  he  commits  no  riot  in  doing  it ;  and  a  public  nuisance  be- 
comes a  private  one  to  him  who  is  specially  and  in  some  particular 
way  incommoded  thereby,  as  in  the  case  of  a  gate  across  a  high- 
way which  prevents  a  traveler  from  passing,  and  which  he  may 
cherefore  throw  down ;  but  the  ordinary  remedy  for  a  public  nui- 
sance is  itself  public,  that  of  indictment  ;^  and  each  individual  who 
is  only  injured  as  one  of  the  public,  can  no  more  proceed  to  abate 
t liaii-h£^-can~brin^  an  action."     The  same  principle  was  distinctly 
reaffirmed  in  Dimes  v.  Petley,  (15  Q.  B.  Rep.  276,)  Lord  Campbell, 


^  While  it  is  generally  stated  that  the  remedy  for  a  purely  public  nuisance 
is  by  indictment,  Griffith  v.  McCullum,  46  Barb.  561  (N.  Y.  1866)  ;  Earp  v. 
Lee,  71  111.  193  (1873),  unless  some  other  remedy  is  provided  by  statute, 
and  while  it  is  held  that,  where  the  statute  declaring  the  nuisance  prescribes 
the  method  of  removing  it,  such  method  is  the  exclusive  remedy,  Brozvn  v. 
Perkins,  12  Gray  89  (Mass.  1858)  ;  Hamilton  v.  Coding,  55  Maine  419  (1867), 
yet  it  is  held  in  many  cases  that  public  authorities,  charged  with  the  duty 
of  care  of  highways,  Reynolds  v.  Urban  Council,  &c.,  L.  R.  1896,  1  Q.  B. 
604,  may  abate  any  unlawful  obstruction  of  such  highway,  Neal  v.  Cihnore, 
141  ]\Iich.  519  (1905),  such  obstruction  being  said  to  be  a  special  grievance 
to  him  by  reason  of  his  duty,  and  municipal  authorities  have  been  held  en- 
titled to  remove  obstructions  interfering  with  the  use  of  public  wharves,  eic. 
Hart  V.  Albany,  9  Wend.  571  (X.  Y.  1832),  pp.  590  and  609;  Af clean  v 
Mathews,  7  111.  App.  599  (1880)  ;  Cunfer  v.  Ceary,  1  Cal.  462  (1851),  semble 

A  municipality  has  the  power  to  abate  nuisances  under  the  police  power 
delegated  to  it  by  its  charter  or  by  statute.  Baker  v.  Boston,  12  Pick.  184 
(Mass.  1831),  and  cases  cited  Cent.  Dig.  Vol.  36,  ^Municipal  Corporations, 
§  1371. 

"A  municipality  may,  with  a  strong  hand,  abate  a  public  or  common 
nuisance,  which  endangers  either  the  health  or  safetv  of  its  citizens" — Pax- 
son,  C.  J.,  in  Easton  &c.  Pass.  R.  Co.  v.  Easton,  133  Pa.  St.  505  (1890).  p. 
520;  Fields  v.  Stokley,  99  Pa.  St.  306  (1882).  the  mayor  of  Philadelphia  held 
entitled  to  tear  down  wooden  shanties  adjacent  to  the  grounds  and  buildings 
of  the  Centennial  Exhibition,  and  threatening  them  with  imminent  danger 
of  a  conflagration;  Harvey  v.  Dewoody,  18  Ark.  252  (1856),  vacant  wooden 
building,  frequented  by  reckless  and  disorderly  persons,  torn  down  by  order 
of  the  mayor  and  town  council. 


944  HARROWER   T'.    RITSON. 

Ch.  J.  delivering  the  judgment  of  the  court,  in  which  he  says: 
"Now  it  is  fully  established  by  the  recent  cases,  (citing  them,) 
that  if  there  be  a  nuisance  in  a  public  highway  a  private  individual 
cannot  of  his  own  authority  abate  it,  unless  it  does  him  a  special 
injury ;  and  he  can  only  interfere  with  it  as  far  as  it  is  necessary 
to  exercise  his  right  of  passing  along  the  highway ;  and  without 
considering  whether  he  must  show  that  the  abatement  of  the  nui- 
sance was  absolutely  necessary  to  enable  him  to  pass,  we  clearly 
think  that  he  cannot  justify  doing  any  damage  to  the  property  of 
the  person  who  has  improperly  placed  the  nuisance  in  the  high- 
way, if,  avoiding  it,  he  might  have  passed  on  with  reasonable  con- 
venience." One  who  is  injured  by  an  obstruction  placed  unlaw- 
fully in  a  highway  cannot  maintain  an  action  for  damages,  if  it 
appears  he  did  not  use  ordinary  care  by  which  the  obstruction 
might  have  been  avoided.  (Irvin  v.  Sprigg,  6  Gill,  200.  Smith  v. 
Smith,  2  Pick.  621.    Davies  v.  Mann,  10  Mees.  &  Wells.  545.) 

The  precise  question  presented  here  was  considered  and  decided 
in  Baieman  v.  Bluck,  (18  Q.  B.  Rep.  870,)  which  was  trespass  for 
entering  the  plaintiff's  close  and  pulling  down  a  wall  therein.  Plea 
that  the  close  was  a  public  pavement  within  the  metropolitan  paving 
act  of  57  Geo.  III.,  ch.  29 ;  that  the  plaintiff  unlawfully,  and  con- 
trary to  the  act,  erected  thereon  the  said  wall ;  and  because  the  wall 
incumbered  the  pavement,  and  the  plaintiff  refused,  on  the  de- 
fendant's request,  to  remove  the  same,  the  defendant  entered  and 
pulled  it  down.  And  it  was  held,  on  motion  for  judgment  non  ob- 
stante veredicto,  that  the  plea  was  bad  for  not  showing  that  it  was 
absolutely  necessary  for  the  defendant,  in  order  to  exercise  the  al- 
leged right  of  passage,  to  remove  the  wall.  In  Arundell  v.  McCul- 
loch.  (10  Mass.  Rep.  70,)  the  navigation  of  a  navigable  river  was 
obstructed  by  a  bridge  erected  by  the  plaintiffs,  and  the  bridge  was 
removed  by  the  defendant  to  facilitate  the  passage  of  a  vessel  be- 
longing to  him,  built  above  the  bridge,  and  as  little  damage  was  done 
to  the  bridge  as  was  possible.  The  court  held  the  defendant  justi- 
fied ;  saying,  "Here  nothing  more  was  done  than  was  necessary  to 
procure  a  safe  passage  for  the  defendant's  vessel." 

The  question  has  not  been  directly  passed  upon  by  the  courts 
of  this  state,  but  general  expressions  of  judges  have  led  to  the  in- 
ference that  every  common  nuisance  which  was  indictable  might  be 
abated  by  any  individual ;  that  indictment,  and  abatement  by  indi- 
vidual action,  were  concurrent  remedies  for  all  public  nuisances. 
And  in  Hart  v.  Mayor  of  Albany,  (9  Wend.  571,)  some  of  the 
members  of  the  court  for  the  correction  of  errors  were  of  the  opin- 
ion that  any  person  might  abate  a  common  nuisance,  whether  he 
•V?.?  specially  aggrieved  by  it  or  not.  But  it  was  not  necessary  to 
pass  upon  it,  as  the  defendants  had  full  power  to  remove  all  ob- 
structions from  the  river  and  harbor,  under  the  city  charter.  And 
the  reporter,  in  the  head  note  to  the  case,  leaves  the  proposition 
in  this  form :  "Whether  an  individual  without  being  specially  ag- 
grieved, has  a  right  to  abate  or  remove  such  nuisance,  qucere."^ 

"A  part  of  the  opinion  discussing  the  cases  of  Rogers  v.  Rogers,  14  Wend. 


HARROWER   V.    RITSON.  945 

If  the  unqualified  right  exists,  and  any  person  may  of  his  vo- 
htion  and  without  process  of  law  abate  a  public  nuisance  upon  the 
peril  only  of  showing  in  justification  that  the  property  destroyed 
or  removed  is  a  nuisance,  and  indictable  as  such,  there  can  be  no 
distinction  made  as  to  the  kind  or  character  of  the  nuisance.  It  may 
be  a  particular  trade,  which  is  only  obnoxious  because  carried  on 
in  a  particular  place  or  in  a  particular  manner  ;^  it  may  be  some- 
thing which  afifects  the  health,  or  the  air,  or  renders  the  enjoyment 
of  property  uncomfortable,  or  depreciates  the  value  of  property ; 
or  it  may  be  something  which  tends  to  a  breach  of  the  public  peace — 
a  disorderly  house,  a  gaming  house,  or  a  hospital,'*  as  well  as  the 
obstruction  of  a  navigable  river,  or  a  public  highway,  or  the  in- 
closure  of  a  common.  To  suffer  any  one,  without  necessity,  to 
become  the  executor  of  this  branch  of  the  common  law,  without 
the  intervention  of  the  ordinary  forms  of  law  and  a  resort  to  the 
process  of  the  courts,  would  tend  to  gross  injustice,  breaches  of 
the  peace  and  riots,  and  the  remedy  would  be  worse  than  the  evil 
to  be  redressed.  But  if  individual  action,  in  the  abatement  of 
miisances,  be  restricted  and  the  power  qualified  and  limited  as  by 
the  English  cases,  and  thus  cited  from  the  courts  of  some  of  the 
United  States,  no  serious  mischief  can  arise,  and  none  of  which 
the  wrongdoer  has  a  right  to  complain.  An  individual  aggrieved 
by  a  private  nuisance  may  have  his  action,  or  he  may  abate  the 
nuisance.^  A  party  sustaining  a  special  injury  from  a  public  or 
common  nuisance  may  also  have  his  action,  and  in  the  like  case  he 
may  abate  the  nuisance.     In  the  language  of  Lord  Campbell,  it  be- 

131  (N.  Y.  1835)  ;  Wetmore  v.  Tracy,  14  Wend.  250  (N.  Y.  1835),  and  Ren- 
wick  V.  Morris,  3  Hill  621,  7  Hill  575  (N.  Y.  1844),  and  holding  the  statements 
asserting  a  general  right  of  abating  public  nuisance,  contained  therein,  to 
be  mere  dicta,  is  omitted. 

^  When  the  nuisance  consists  in  the  use  of  a  building,  and  not  its  physi- 
cal character  or  condition,  the  proper  remedy  is  the  termination  of  the  wrong- 
ful use,  and  not  the  removal  or  the  destruction  of  the  building,  Brown  v. 
Perkins,  12  Gray  89  (Mass.  1858)  ;  State  v.  Paul,  5  R.  I.  185  (1858)  :  State 
V.  Kceran,  4  R.  I.  497  (1858)  ;  Moody  v.  Niagara  Co.,  46  Barb.  659  (X.  Y. 
1866)  ;  Barclay  v.  Commonwealth,  25  Pa.  St.  508  (1855)  ;  but  see  HarTcy  v. 
Dewoody,  18  Ark.  252  (1856),  where  the  improper  use  could  practically  not 
be  prevented  except  by  destroying  the  building. 

*  So  it  is  held  that  private  individuals  cannot  destroy  whiskey,  kept  for 
sale  against  a  statutory  prohibition,  whether  the  statute  declares  such  keep* 
ing  a  nuisance  or  not.  Brown  v.  Perkins,  12  Gray  89  (Mass.  1858)  ;  Hamil- 
ton v.  Coding,  55  Maine  419  (1867);  nor  tear  down  a  building  where  such 
whiskev  is  kept.  Brown  v.  Perkins,  12  Gray  89  (}ilass.  1858)  ;  Earp  v.  Lee.  71 
111.  193  (1873)  ;  State  v.  Paul,  S  R.  I.  185  (1858)  ;  State  v.  Kceran,  4  R.  1. 
497  (1858)  ;  or  which  is  used  in  a  manner  to  be  a  nuisance  by  common  law 
or  by  statute.  Moody  v.  Niagara  Co.,  46  Barb.  659  (N.  Y.  1866),  affirmed 
under  the  name  of  Ely  v.  Niagara  County,  36  N.  Y.  297  (1867),  a  bawdy- 
house  destroyed  by  a  mob;  Welch  v.  Stowcll,  2  Dougl.  332  (Mich.  1849). 

°  The  right  to  abate  is  usuallv  said  to  exist  if,  and  only  if,  there  is  a  right 
of  action  for  damages,  Watts  v.  Norfolk  &  W.  R.  Co.,  39  W.  Va.  196  (1894)  : 
Priewe  v.  Fitzsimmons  &c.  Co.,  117  Wis.  497  (1903).  "In  the  case  of  a  pri- 
vate nuisance,"  says  Marvin,  J.,  in  Griffith  v.  McCullum,  46  Barb.  561  (N.  Y. 
1866),  p.  569,  "the  aggrieved  party  has  his  election  of  remedies.  He  may  re- 
move the  nuisance  or  he  may  have  his  action  for  the  private  damages  sus- 
tained by  him.   He  cannot  have  both  remedies."    So,  as  he  has  no  right  oi  ac- 


Q46  HARROWER    Z'.    RITSON. 

comes  to  him  a  private  nuisance.  He  may  remove  that  which  in- 
terferes with  his  right,  to  the  extent  necessary  to  the  reasonable 
enjoyment  of  the  right  of  which  the  thing  interposed  would  de- 
prive him,  doing  no  unnecessary  damage.  A  party,  by  erecting  a 
nuisance,  does  not  put  himself,  or  his  property,  beyond  the  protec- 
tion of  the  law.  If  an  individual  or  member  of  the  community  can 
with  reasonable  care,  notwithstanding  the  act  complained  of,  enjoy 
the  right  of  franchise  belonging  to  him,  he  is  not  at  liberty  to  de- 
stroy or  interfere  with  the  property  of  the  wrongdoer. 

In  this  case,  whatever  might  have  been  proper  had  the  plain- 
tiffs been  on  trial  upon  an  indictment  for  the  nuisance,  the  requests 
of  their  counsel  were  proper,  and  the  instructions  should  have  been 
given  to  the  jury  as  asked  for.*'  The  justification  of  the  defendants 
was  limited  by  the  necessity  of  the  case,  and  if  the  use  of  the  road 
was  not  interfered  with,  the  defendants  were  trespassers  in  re- 
moving the  fence.  The  instructions  asked  were  substantially  the 
same  as  those  given  in  Remvick  v.  Morris. 

The  judgment  must  be  reversed,  and  a  new  trial  granted;  costs 
to  abide  the  event. 

Bacon  and  Mullin,  Justices,  concurred. 


tion  for  a  condition  which  threatens  merely  possible  injury  at  some  future 
time,  he  cannot  abate  it,  Gates  v.  Blincoe,  2  Dana  158  (Ky.  1834)  ;  Moffett  v. 
Brewer,  1  G.  Greene  348  (Iowa  1848)  ;  Toledo,  St.  L.  &  K.  R.  Co.  v.  Loop,  139 
Ind.  542  (1894)  ;  Graves  v.  Shattnck,  35  N.  H.  257  (1857);  Priewe  v.  Fitz- 
simmoiis,  117  Wis.  497  (1903),  unless  the  condition  or  structure,  though 
causing  no  immediate  tangible  loss  or  inconvenience,  constitutes  "an  infringe- 
ment of  his  right  which  might  ripen  into  an  easement,"  when,  since  an  action 
would  lie  for  nominal  damages,  the  person  whose  right  is  infringed  may  enter 
and  abate  it,  Atnoskeag  Mfg.  Co.  v.  Goodale,  46  N.  H.  53  (1857)  ;  see  also,  the 
cases  recognizing  a  general  right  in  any  member  of  a  community  to  remove 
gates  or  fences  erected  by  landowners  across  public  rights  of  way  over  their 
lands.  Brake  v.  C rider,  107  Pa.  St.  210  (1884),  semble.  So,  since,  with  certain 
exceptions  no  action  lies  against  a  vendee  or  lessee,  who  omits  to  remove  a 
nuisance  created  by  his  vendor  or  lessor,  until  notice  is  given  him  to  remove 
it,  Penruddock's  case,  5  Coke  101a  (1597)  ;  Johnson  v.  Lewis,  13  Conn.  303 
(1839),  such  a  nuisance  cannot  be  abated  until  such  notice  is  given,  Jones 
V.  IVilliams,  11  M.  &  W.  176  (1843).  But  one,  whose  right  as  a  member 
of  the  public  to  pass  along  highways,  or  navigate  rivers  or  streams,  is 
obstructed,  is  held  entitled  to  remove  the  obstruction,  yet  the  mere  obstruc- 
tion of  such  right  is  not  of  itself  held  sufficient  private  damage  to  support 
an  action  for  damages. 

®"The  court  was  requested  to  charge,  1.  That  a  mere  encroachment  on 
the  road  by  the  fence  did  not  authorize  the  removal  of  the  fence  by  the  de- 
fendants, unless  it  hindered,  impeded  or  obstructed  the  use  of  the  road  by 
the  public;  and  2d.  That  an  encroachment  of  a  fence  upon  the  road  is  not 
a  public  nuisance,  so  as  to  authorize  an  individual  to  abate  it,  unless  it  inter- 
feres with  the  use  of  the  road  by  the  public." 

"These  instructions  were  refused,  on  the  ground  that  it  was  not  such  a 
case;  although  there  might  be  cases  where  persons  might  interfere  with 
a  mere  encroachment,  and  that  this  amounted  to  an  obstruction  if  it  was 
within  the  limits  of  the  highway  as  actually  fenced  and  used.  That  the  de- 
fendants had  a  right  to  the  full  width  of  the  road  as  fenced  and  used,  al- 
though they  may  have  been  able  to  get  by  the  obstruction  without  any  serious 
inconvenience.  The  plaintiffs  had  no  right  to  narrow  the  road,  and  if  they 
did  put  their  fence  in  the  road,  the  defendants  could  remove  it,  doing  no 
unnecessary  damage  " 


PATTERSON    V.    NUTTER.  947 

Morgan,  J.  (dissenting.)  By  the  common  law,  any  encroach- 
ment or  incumbrance  upon  the  highway,  by  which  it  is  rendered 
less  commodious  to  the  people,  is  a  public  nuisance,  and  may  be 
abated  without  suit,  (i  Haw.  P.  C.  212.)  Every  portion  of  the 
road,  as  laid  out  and  used,  is  dedicated  to  the  public  and  cannot 
be  obstructed  so  as  to  interfere  with  the  public  travel  over  such 
portions,  although  there  may  be  room  to  pass  on  the  opposite  side. 
(Id.  365.  16  Vin,  Abr,  tit.  Nuisance,  W.)  There  may  be  excep- 
tions to  this  rule,  but  they  have  only  been  allowed  in  cases  where 
the  pretended  obstructions  were  temporary,  or  the  alleged  en- 
croachment was  beneficial.  It  is  upon  this  ground  that  ornamental 
trees  are  considered  a  public  benefit,  instead  of  an  obstruction. 
But  there  is  no  allegation  of  benefit  here,  and  by  the  finding  of  the 
jury  the  plaintiffs'  fence  was  placed  within  the  limits  of  the  high- 
way. It  is  now  said  that  teams  could  have  passed  on  the  other  side 
without  difficulty,  or  at  least  the  jury  might  have  found  so  by  their 
verdict.     But  this  is  not  the  test. 

New  trial  granted.'^ 

(d)     Use  of  force  necessary  for  the  preservation  of  discipline. 


-Vo/cf. 


^        PATTERSON  v.  NUTTER. 

Supreme  Judicial  Court  of  Maine,  1886.     78  Maine  Reports,  509. 

Emery,  J.  Free  political  institutions  are  possible  only  where 
the  great  body  of  the  people  are  moral,  intelligent  and  habituated 
to  self-control,  and  to  obedience  to  lawful  authority.  The  per- 
manency of  such  institutions  depends  largely  upon  the  efficient  in- 


'  In  the  following  cases  it  is  held  that  a  public  nuisance  can  only  be 
abated  by  a  private  individual  if  he  be  specially  injured'  or  aggrieved,  or  is 
especially  impeded  in  the  exercise  of  his  rights. 

Obstructions  in  the  highw^ay  not  seriously  interfering  with  the  defend- 
ants' convenient  use  thereof  or  impeding  his  passage,  Clark  v.  Lake  St. 
Clair  &c.  Ice  Co.,  24  Mich.  508  (1872)  ;  Corthell  v.  Holmes,  87  Maine  24 
(1894);  Hopkins  v.  Cromhie,  4  N.  H.  520  (1829),  the  structure  removed, 
though  not  interfering  with  the  convenient  use  of  the  highway,  was  an  en- 
croachment thereon,  and,  as  such,  was  by  statute  declared  to  be  a  public 
nuisance;  but  see  Lancaster  Turnpike  Co.  v.  Rogers,  2  Barr.  114  (Pa.  1845), 
where  it  was  held  that  a  landowner  could  remove  an  abandoned  toll-house, 
built  partly  on  her  land  and  partly  on  an  adjacent  highway,  though  it  did  not 
appear  that  it  interfered  with  her  convenient  use  thereof. 

Obstructions  to  navigation  in  navigable  rivers  and  streams;  Fort  Plain 
Bridge  Co.  v.  Smith,  30  N.  Y.  44  (1864),  scmble,  a  bridge  company  held  to 
have  no  right  to  destroy  another's  bridge,  though  it  obstructed  navigation ; 
Gumbert  v.  Wood,  146  Pa.  St.  370  (1891)  ;  Shaw,  C.  J.,  in  Brown  v.  For  kins, 
12  Gray  89  (Mass.  1858)  ;  Griffith  v.  Holman,  23  Wash.  347  (1910),  semble; 
Watts  V.  Norfolk  &  W.  R.  Co.,  39  W.  Va.  196  (1894),  p.  212,  semble;  Larson 
V.  Furlong,  50  Wis.  681   (1881). 

A  building,  a  nuisance  because  injurious,  in  itself  or  as  used,  to  the  public 
peace,  good  order  or  morals,  see  cases  cited  in  Notes  3  and  4  and  see  also 
Bowden  v.  Lewis,  13  R.  I.  189  (1881)  ;  Fields  v.  Stokley,  99  Pa.  St.  306 
(1882);  Klinger  v.  Bicket,  117  Pa.  St.  326  (1887),  semble.    Contra:  Meeker 


948  PATTERSON    V.    NUTTER. 

struction  and  training  of  children  in  those  virtues.  It  is  to  secure 
this  permanency  that  the  state  provides  schools  and  teachers. 
School  teachers,  therefore,  have  important  duties  and  functions, 
^luch  depends  upon  their  ability,  skill  and  faithfulness.  They 
must  train  as  well  as  instruct  their  pupils.  R.  S.,  c.  11,  §  97.  The 
acquiring  of  learning  is  not  the  only  object  of  our  public  schools. 
Tc  become  good  citizens,  children  must  be  taught  self-restraint, 
obedience,  and  other  civic  virtues. 

To  accomplish  these  desirable  ends,  the  master  of  a  school  is 
necessarily  invested  with  much  discretionary  power.  He  is  placed 
in  charge  some  times  of  large  numbers  of  children,  perhaps  of 
both  sexes,  of  various  ages,  temperaments,  dispositions,  and  of 
various  degrees  of  docility  and  intelligence.  He  must  govern  these 
pupils,  quicken  the  slothful,  spur  the  indolent,  restrain  the  impetu- 
ous, and  control  the  stubborn.  He  must  make  rules,  give  com- 
mands, and  punish  disobedience.  What  rules,  what  commands, 
and  what  punishments  shall  be  imposed,  are  necessarily  largely 
within  the  discretion  of  the  master,  where  none  are  defined  by 
the  school  board.  In  State  v.  Pendcrgrass,  2  D.  &  B.  (N.  C.) 
365,  (S.  C.  31  Am.  Dec.  416),  it  was  said:  "One  of  the  most  sacred 
duties  of  parents  is  to  train  up  and  qualify  their  children  for  be- 
coming useful  and  virtuous  members  of  society;  this  duty  cannot 
be  effectually  performed  without  the  ability  to  command  obedience, 
to  control  stubbornness,  to  quicken  diligence  and  to  reform  bad 
habits ;  and  to  enable  him  to  exercise  this  salutary  sway,  he  is  armed 
with  the  power  to  administer  moderate  correction,  when  he  shall 


v.  VanRensselaer,  15  Wend.  397  (N.  Y.  1836),  individuals  held  entitled  to 
tear  down,  during  an  epidemic  of  Asiatic  cholera,  a  filthy  and  overcrowded 
tenement  house. 

jNlany  of  the  earlier  cases  contain  dicta  following  Blackstone's  broad 
assertion  of  a  right  in  any  one  to  abate  a  public  nuisance,  but  in  every  case 
the  nuisance  was  abated  by  the  municipal  authorities,  Hart  v.  Albanv,  9  Wend. 
571  (X.  Y.  1832);  Rung  v.  Schoneberger,  2  Watts  23  (Pa.  1833);  Harvey 
V.  Dewoody,  18  Ark.  252  (1856)  ;  or  the  thing  abated  was  held  to  be  no 
nuisance,  Gunter  v.  Geary,  1  Cal.  462  (1851),  note  1;  Graves  v.  Shattitck,  35 
X.  H.  257  (1857);  Bnmham  v.  Hotchkiss,  14  Conn.  311  (1841);  Rogers  v. 
Rogers,  14  Wend.  131  (X.  Y.  1835)  ;  Low  v.  Knowlton,  26  Maine  128  (1846). 

In  the  following  cases  one  specially  aggrieved  by  a  pubhc  nuisance  may 
abate  it;  obstructions  interfering  with  the  convenient  use  of  a  highway, 
James  v.  Hayzuard,  Cro.  Jac.  184  (1630)  ;  Hubbard  v.  Denning,  21  Conn.  356 
(1851)  ;  Marcy  v.  Taylor,  27  111.  634  (1858)  ;  Corf  hell  v.  Holmes,  88  Maine  376 
(1896)  ;  Pontiac  &c.  Plank  Road  Co.  v.  Hilton,  69  Mich.  115  (1888)  ;  Griffith 
V.  McCuUum,  46  Barb.  561  (X.  Y.  1866)  ;  Dimmett  v.  Eskridge,  6  Mumf.  308 
(Va.  1819)  ;  Goodsell  v.  Fleming,  59  Wis.  52  (1883)  ;  and  see  Shea  v.  Sixth 
Ave.  R.  Co.,  62  X.  Y.  180  (1875),  where  the  plaintiff  was  held  to  have  the 
right  to  pass  over  the  platform  of  a  street  car,  stopped  so  as  to  block  the 
crossing,  and  the  conductor  had  no  right  to  resist  her  passage;  or  which 
interferes  with  the  defendant's  access  to  his  abutting  premises;  obstruction 
to  the  defendant's  navigation  of  a  river  or  stream,  Philiber  v.  Matson,  14 
Pa.  St.  306  (1850)  ;  Beach  v.  Schoff,  28  Pa.  St.  195  (1857)  ;  State  v.  Parrott, 
71  X.  Car.  311  (1874)  :  Sehnan  v.  Wolfe,  27  Tex.  68  (1863)  ;  Larson  v.  Fur- 
long, 63  Wis.  323  (1885),  excavation  in  street  from  which  the  water,  col- 
lected therein,  flowed  upon  the  defendant's  land,  State  v.  Smith,  52  Wis.  134 
(1881). 


PATTERSOX    V.    NUTTER.  949 

believe  it  to  be  just  and  necessary.^  The  teacher  is  the  substitute 
of  the  parent ;  is  charged  in  part  with  the  performance  of  his 
duties,  and  in  the  exercise  of  these  delegated  duties,  is  invested 
with  his  power. ^  The  law  has  not  undertaken  to  prescribe  stated 
punishments  for  particular  offenses,  (by  a  pupil)  but  has  contented 
itself  with  the  general  grant  of  the  power  of  moderate  correction, 
and  has  confided  the  graduation  of  punishments,  within  the  limits 
of  this  grant,  to  the  discretion  of  the  teacher." 

This  power  of  moderate  correction  unquestionably  includes 
corporal  punishment.  Authorities  are  not  needed  for  this  proposi- 
tion. The  subject  was  incidentally  considered  in  Stevens  v.  Fas- 
sett,  27  JNIaine,  296,  and  it  was  declared  by  this  court,  through  Judge 
Shepley,  that  personal  chastisement  was  lawful  in  our  schools, 
and  was  properly  resorted  where  milder  means  of  restraint  were 
unavailing.  Indeed,  the  plaintiff's  counsel  does  not  question  that 
personal  chastisement  has  been  the  practice,  and  has  often  been 


^As  to  the  limits  of  the  right  of  a  parent,  or  one  in  loco  parentis,  to 
corporally  punish  his  child,  see  State  v.  Alford,  68  N.  Car.  322  (1873)  ;  State 
V.  Jones,  95  N.  Car.  588  (1886)  ;  People  v.  Green,  155  Mich.  524  (1909),  with 
A-aluable  note;  State  v.  Koonse,  123  Mo.  App.  655  (1907);  Clasen  v.  Prtihs, 
69  Nebr.  278  (1903);  and  see  Winterhum  v.  Brooks,  2  Car.  &  Kirw.  16 
(1846).  In  Smith  v.  Slocum,  62  111.  354  (1872),  a  father,  as  the  head  of  a 
household,  is  held  to  have  the  right  to  employ  the  force  necessary  to  pre- 
serve good  order  and  propriety  of  his  household,  and  may  remove  from  the 
room  a  grown  daughter  who  is  quarreling  with  the  servant  and  slandering 
her  step-mother,  and  who,  after  being  told  to  go  to  her  room,  refuses  to  do  so. 

No  civil  action  for  personal  injury  of  any  sort  will  lie  by  the  child 
against  his  parent  so  long  as  the  relation  continues,  Hewlett  v.  George,  68 
Miss.  703  (1891)  ;  Foley  v.  Foley,  61  111.  App.  577  (1895)  ;  McKelvey  v.  Mc- 
Kelvcy,  111  Tenn.  388  (1903)  ;  all  cases  of  assault  for  excessive  and  cruel 
discipline;  Roller  v.  Roller,  Zl  Wash.  242  (1905),  assault  for  rape  by  father. 
In  Fortinberry  v.  Holmes,  89  Miss.  373  (1906),  it  was  held  that  a  woman 
to  whom  the  child's  mother  gave  it  to  support  and  treat  "as  her  own"  stood 
in  loco  parentis,  and  was  not  liable  to  an  action  by  the  child  for  chastising 
it,  though  the  mother  had  given  instructions  that  the  child  was  not  to  be 
whipped.  But  the  parent,  if  he  exercises  his  rights  improperly,  may  be 
punished  criminally,  cases  cited  supra,  or  be  deprived  of  the  custody  and 
control  of  the  child,  Cunningham's  Case,  61  N.  J.  Eq.  454  (1901). 

In  Clasen  v.  Pnihs,  69  Nebr.  278  (1903),  it  was  held  that  where  a  child 
had  been  chastised  by  an  aunt  standing  to  her  in  loco  parentis,  she  might 
m.aintain  an  action  against  such  person  after  the  relation  had  terminated; 
and  in  Treschman  y.  Treschman,  28  Ind.  App.  206  (1901),  a  step-daughter 
successfully  maintained  an  action  against  her  step-mother. 

-So  Cockburn,  C.  J.,  says,  in  Fitzgerald  v.  Northcote,  4  F.  &  F.  656 
(1865),  p.  689,  "A  parent  when  he  places  his  child  with  a  schoolmaster,  he 
delegates  to  him  all  his  authority  so  far  as  it  is  necessary  for  the  welfare 
of  the  child";  and  see  Mansell  v.  Griffin,  L.  R.  1908,  1  K.  B.  160,  per  Walton, 
J.,  p.  169,  holding  that  the  fact  that  the  school  regulations,  not  known  to  her 
parent,  forbade  corporal  punishment,  did  not  make  moderate  punishment 
wrongful. 

In  Lander  v.  Seater,  32  Vt.  114  (1859),  p.  123.  it  is  held  that  the  school- 
master "cannot  be  safely  trusted  with  all  a  parent's  authority,  for  he  does 
not  act  from  the  instinct  of  parental   affection." 

As  to  the  liability  of  the  head  of  a  religious  community  to  whom  the 
child's  parent  has,  in  common  with  the  other  parents  in  the  communitv,  sur- 
rendered her  right  of  punishment,  see  Donnelley  v.  Territory  of  Arizona  5 
Ariz.  291   (1898). 


r)50  PATTERSON    V.    NUTTER. 

declared  to  be  lawful.  He  eloquently  urges,  however,  that  corporal 
punishment  is  a  "relic  of  barbarism,"  that  it  has  been  abolished 
in  the  army  and  navy,  and  has  been  forbidden  in  many  schools  by 
school  boards.  He  urges  that  the  greater  humanity  and  tender- 
ness of  this  age  should  not  tolerate  it  in  any  schools,  and  that  the 
courts  of  this  day  should  recognize  it  as  a  proper  mode  of  school 
punishment.  Whatever  force  this  argument  might  have  with  legis- 
latures or  school  boards,  it  should  not  move  the  court  from  the 
well  established  doctrine. 

The  extent  of  the  school-master's  discretion  in  the  exercises 
of  this  power  of  personal  chastisement,  is  the  only  question  here ; 
and  upon  this  question  we  think  the  law  is  well  and  correctly  stated 
in  Lander  v.  Seaver,  32  Vt.  1 14,  as  follows :  "A  school-master  has 
the  right  to  inflict  reasonable  corporal  punishment.  He  must  ex- 
ercise reasonable  judgment  and  discretion,  in  determining  when  to 
punish  and  to  what  extent.  In  determining  what  is  reasonable 
punishment,  various  considerations  must  be  regarded,  the  nature 
of  the  offence,  the  apparent  motive  and  disposition  of  the  oft'ender, 
the  influence  of  his  example  and  conduct  upon  others,  and  the  sex, 
age,  size  and  strength  of  the  pupil  to  be  punished.  Among  rea- 
sonable persons  much  dift'erence  prevails  as  to  the  circumstances 
which  will  justify  the  infliction  of  punishment,  and  the  extent  to 
which  it  may  properly  be  administered.  On  account  of  this  differ- 
ence of  opinion  and  the  difficulty  which  exists  in  determining  what 
is  a  reasonable  punishment,  and  the  advantage  which  the  master 
has,  by  being  on  the  spot,  to  know  all  the  circumstances,  the  man- 
ner, look,  tone,  gestures  and  language  of  the  offender,  (which  are 
not  always  easily  described)  and  thus  to  form  a  correct  opinion 
as  to  the  necessity  and  extent  of  the  punishment,  considerable 
allowance  should  be  made  to  the  teacher  by  the  way  of  protecting 
him  in  the  exercise  of  his  discretion.  Especially  should  he  have 
this  indulgence  when  he  appears  to  have  acted  from  good  motives 
and  not  from  anger  or  malice.  Hence  the  teacher  is  not  to  be  held 
liable  on  the  ground  of  the  excess  of  punishment,  unless  the  pun- 
ishment is  clearly  excessive,  and  would  be  held  so  in  the  general 
judgment  of  reasonable  men.  If  the  punishment  be  thus  clearly 
excessive,  then  the  master  would  be  liable  for  such  excess,  though 
he  acted  from  good  motives  in  inflicting  the  punishment,  and  in 
his  own  judgment  considered  it  necessary  and  not  excessive;^  but 


'He  is  equally  liable  if  the  punishment  is  inflicted  without  proper  cause, 
Anderson  v.  State,  3  Head  455  (Tetin.  1859)  ;  State  v.  Mistier,  50  Iowa  145 
(1878),  child  punished  for  not  studying  subjects  which  his  parent  had  di- 
rected that  he  should  not  study;  State  v.  I'anderbilt,  116  Ind.  11  (1888), 
child  punished  for  not  paying  for  school  property  destroyed  by  it,  the  regu- 
lation requiring  such  payment  being  held  unreasonable,  it  being  also  inti- 
mated that  a  child  may  not  be  punished  for  carelessness,  in  which__  there  is 
no  purpose  to  do  wrong,  compare  Heritage  v.  Dodge,  64  N.  H.  297  (1886). 
Morrow  v.  Wood,  35  Wis.  59  (1874),  child  punished  for  acts  outside  of  a 
teacher's  jurisdiction,  but  a  child  mav  be  punished  for  acts  done  outside  the 
school,  Cleary  v.  Booth,  (1893)  1  Q.  B.  465;  Bolting  v.  State,  23  Tex.  App.  172 
(1887),  where  the  acts  directly  tend  to  injure  the  school  disciplme,  Lander 


PATTERSON    V.    NUTTER.  95 T 

if  there  be  any  reasonable  doubt  whether  the  punishment  was  ex- 
cessive, the  master  should  have  the  benefit  of  the  doubt."*  The 
foregoing  statement  of  the  law  is  well  supported  by  the  authorities 
cited  in  the  notes  to  that  case,  in  76  Am.  Dec.  163. 

Now  comparing  the  judge's  rulings  in  this  case  with  the  above 
clear  exposition  of  the  law,  it  will  be  seen  that  in  one  respect  at 
least,  there  was  error.  It  is  true  the  master  should  be  held  to  have 
exceeded  his  discretion  and  thus  become  liable  as  a  trespasser,  un- 
less the  punishment  is  clearly  excessive ;  but  the  judge  ruled  that 
the  punishment  must  be  so  clearly  excessive  "that  all  hands  would 
at  once  say  it  was  excessive."  The  correct  rule  holds  the  teacher 
liable  if  he  mKTcts  a  punishment  which  the  general  judgment  of 
such  men,  after  thought  and  reflection,  would  call  clearly  excessive. 
The  rule_given  at  the  trial  of  this  case,  however,  would  permit  a 
teacher  to  proceed  in  severity  of  punishment  until  it  became  so 
great  as  to  excite  the  instant  condemnation  of  all  men,  the  stupid 
and  ignorant  as  well  as  the  rational  and  intelligent.  Such  a  ruling 
is  clearly  wrong  and'there  should  be  a  new  trial. 

Exceptions  sustained,  ^ew  trial  granted. 


v.  Seaver,  32  Vt.  114  (1859).    The  master  has  no  right  to  punish  a  pupil  who 
is  ignorant  of  the  reason  for  it,  State  v.  Mizner,  supra. 

*  Accord:  Sheehan  v.  Sturges,  53  Conn.  481  (1885);  Cooper  v.  McJun- 
kin,  4  Ind.  290  (1840),  with  which  compare  Vanvactor  v.  State,  113  Ind.  276 
(18)87)  ;  Commonmealth  v.  Randall,  4  Grav  36  (Mass.  1855)  ;  Haycraft  v. 
Grigsby,  88  Mo.  App.  354  (1901)  ;  Lander  v.  Seaver,  32  Vt.  114  (1859),  and 
see  Kelt's  case,  cited  in  3  Salk.  47  (1692),  and  Fitzgerald  v.  Northcote,  4  F.  & 
F.  656  (1856),  and  Regina  v.  Hopley,  2  F.  &  F.  202  (1860). 

On  the  other  hand,  many  cases  hold  that,  Hke  a  parent,  a  schoolmaster 
is  the  sole  judge  as  to,  Hentage  v.  Dodge,  64  N.  H.  291  (1886),  the  necessity 
for  and  the  severity  of  the  punishment,  Boyd  v.  State,  88  Ala.  169  (1890)  ; 
Fox  V.  People,  84  111.  App.  270  (1899)  ;  Commonwealth  v.  Seed,  5  Clark  78 
(Pa.  1850)  ;  State  v.  Pendergrass,  2  Dev.  &  B.  365  (N.  Car.  1837)  ;  State 
V.  Jones,  95  N.  Car.  588(1886),  semhle,  and  he  is  not  answerable  for  errors 
of  judgment,  if  he  acts  in  good  faith  and  without  malice. 

In  State  v.  Pendergrass.  2  Dev.  &  B.  365  (N.  Car.  1837),  and  State  v. 
Jones,  95  N.  Car.  588  (1886),  it  is  held  that  punishment  "which  may  serious- 
ly endanger  life  and  limb,  or  health,  or  shall  disfigure  the  child,  or  cause 
any  other  permanent  injury,  may  be  pronounced  of  itself  immoderate,  as  not 
only  being  unnecessary  for,  but  inconsistent  with  the  purpose  for  which 
correction  is  authorized,"  i.  e.,  the  future  welfare  of  the  child;  and  see  1 
Hawk,  P.  C,  261,  473-4.  In  Boyd  v.  State,  88  Ala.  169  (1890),  the  use  of 
such  an  instrument  is  regarded  as  evidence  of  malice,  see  Commonwealth  v. 
Seed,  5  Clark  78  (Pa.  1850).  So  malice  mav  be  inferred  from  the  excessive 
nature  of  the  beating.  State  v.  Thornton,  136  N.  Car.  610  (1904). 

In  all  jurisdictions  it  is  an  assault  and  battery  to  beat  a  pupil  or  son  un- 
der pretext  of  duty.  State  v.  Long,  117  N.  Car.  791  (1895)  ;  or  for  spite.  Com- 
monwealth V.  Ebert,  11  Pa.  Dist.  Rep.  199  (1901)  ;  or  out  of  revenge.  State  v. 
Thornton,  136  N.  Car.  610  (1904),  or  from  caprice,  anger  or  bad  temper,  Bris- 
son  v.  Lafontaine,  8  Lower  Can.  jur.  173  (1864)  ;  or  to  inflict  a  cruel  punish- 
ment, Marlsbary  v.  State,  10  Ind.  App.  21  (1833)  ;  Hathaway  v.  Rice,  19  Vt. 
102  (1846). 

The  right  of  a  master  to  correct  his  apprentice  though  denied  in  1481, 
Anon.,  Y.  B.  21  Edw.  IV,  6,  pi.  1,  on  the  ground  that  he  might  have  a  writ 
of  covenant  for  any  misconduct,  was  allowed  in  the  same  year  in  Anon.,  Y. 
B.  21  Edw.  IV,  53,  pi.  17,  accord:  Commonwealth  v.  Baird,  1  Ashm.  267  (Pa. 
1830),  semble,  but  this  right  does  not  extend  to  the  correction  of  ordinary 


95^ 


BROWX    Z\    HOWARD. 


BROWN,  HUSSEY  AND  ERITH  v.  HOWARD. 

Supreme  Court  of  the  state  of  Nezv  York,  1817.    14  Johnson's  Rep.  118. 

The  defendants  in  error  brought  an  action,  in  the  Court  below, 
against  the  plaintiffs  in  error,  for  an  assault  and  battery  and  false 
imprisonment  on  the  high  seas,  on  board  the  ship  Tea-plant,  on  a 
voyage  from  Liverpool  to  New  York.  Brown,  the  master  of  the 
ship,  pleaded  not  guilty,  and  son  assault  demesne,  and  the  other 
two  defendants,  who  were  mates  on  board  of  the  same  vessel, 
pleaded  not  guilty,  and  justified  that  they  acted  by  the  orders  of 
Brown,  the  master. 

At  the  trial  in  the  Court  below,  which  was  without  a  jury,  five 
witnesses,  who  were  seamen  on  board  of  the  same  vessel,  testified 
on  the  part  of  the  plaintiff  below,  also  a  seaman  on  board,  that 
while  it  was  blowing  very  hard,  and  the  plaintiff  and  some  other 
of  the  hands  were  engaged  in  hoisting  and  belaying  the  foresail, 
the  captain  took  up  a  mallet,  and  after  cursing  at  them,  threatened 
to  knock  out  their  brains  if  they  did  not  exert  themselves  more ; 
that  they  were  then  ordered  aft  by  the  captain  to  hoist  the  mizzen 
staysail,  who,  having  procured  a  rope  about  half  an  inch  thick, 
violently  struck  the  sailors,  and  attacked  the  plaintiff  below,  and 
gave  him  eight  or  ten  blows  with  the  rope ;  that  the  plaintiff  below 
asked  him  what  he  meant  by  such  conduct,  whereupon  the  captain 
again  attacked  him,  and  struck  him  a  number  of  blows,  and  then 
endeavored  to  force  him  to  go  aloft  to  slush  the  skysail  mast,  a  thin 
spar  where  there  was  nothing  to  hold  by  but  the  mast  itself,  and 
where,  from  the  roughness  of  the  sea,  a  man  could  not  go  with 
safety ;  that  the  plaintiff  below  said  that  he  had  been  so  beaten  that 
he  could  not  hold  on,  and  seized  and  clung  to  some  part  of  the  rig- 
ging, the  captain  still  pulling  him  with  violence,  until  he  forced 
him  away,  and  both,  by  the  violence  of  the  captain's  effort,  and 
the  rolling  of  the  ship,  fell  upon  the  deck,  the  captain  upon  the 
plaintiff ;  and,  the  other  two  defendants  being  present  all  this  time, 
the  second  mate  took  the  captain  off  from  the  plaintiff  below,  and 
the  captain  then  ordered  the  two  mates  to  tie  the  plaintiff"  below, 
hand  and  foot,  which  they  did,  and  laid  him  on  the  quarter-deck ; 
that  the  plaintiff  remained  bound  in  this  manner,  without  the 
power  of  moving  himself,  exposed  to  the  inclemency  of  the  weather, 
in  the  month  of  March,  for  five  days  and  nights,  except  during  two 
nights,  when  the  weather  was  so  very  bad  that  the  captain  ordered 
him  to  be  put  below ;  that  after  this  the  plaintiff  below  was  asked 
by  the  captain  if  he  would  do  his  duty,  to  which,  on  replying  in  the 
affirmative,  he  was  released,  but  was  afterwards  confined  to  his 
berth  for  some  time  by  rheumatism,  and  that  to  relieve  him  the 
captain  ordered  one  of  the  mates  to  apply  some  remedy  to  the  part 


hired   servants,   Commonwealth  v.  Baird,   1   Ashm.  267    (Pa.    1830)  ;    Tinkle 
V.  Dnnivant,  16  Lea  503  (Tenn.  1886). 


BROWN    V.    HOWARD.  953 

affected,  which  was  done  accordingly.  The  justice  gave  judgment 
for  the  plaintiff  below,  for  one  hundred  and  twenty-five  dollars. 

Although  a  captain  may  have  a  right  to  inflict  corporal  punish- 
ment upon  a  seaman  under  his  command,  yet  it  is  not  an  arbitrary 
and  uncontrolled  right :  he  is  amenable  to  the  law  for  the  due  exer- 
cise of  it.  "He  ought  to  be  able  to  show,  not  only  that  there  \vas  a 
sufficient  cause  for  chastisement,  but  that  the  chastisement  itself 
was  reasonable  and  moderate.  (2  Bos.  &  Pull.  224.  3  Day's  Rep. 
285.)  The  rule  on  this  subject  is  well  laid  down  by  Abbot.  (On 
Shipping,  125.)  By  the  common  law,  says  he,  the  master  has 
authority  over  all  the  mariners  on  board  the  ship,  and  it  is  their 
duty  to  obey  his  commands  in  all  lawful  matters,  relative  to  the 
navigation  of  the  ship,  and  the  preservation  of  good  order;  and, 
in  case  of  disobedience  or  disorderly  conduct,  he  may  lawfully 
correct  them  in  a  reasonable  manner ;  his  authority,  in  this  respect, 
being  analogous  to  that  of  a  parent  over  a  child,  or  a  master  over 
his  apprentice,  or  scholar.^  Such  an  authority  is  absolutely  neces- 
sary to  the  safety  of  the  ship,  and  of  the  lives  of  the  persons  on 
board ;  but  ii  behooves  the  master  to  be  very  careful  in  the  exer- 
cise of  it,  and  not  to  make  his  parental  power  a  pretext  for  cruelty 
and  oppression.^ 

Not  being  able  to  discover,  from  the  return,  the  least  justi- 
fication for  the  captain's  treatment  of  the  plaintiff  below,  and  the 


^  The  master's  power  is  not  co-extensive  with  that  of  the  parent  or  even 
the  schoolmaster,  he  can  only  punish  for  faults,  which  relate  to  the  duties 
of  the  seaman  as  such,  or  which  tend  to  subvert  the  discipline  of  the  ship, 
but  not  for  general  immoralities  or  improper  conduct  though  tending  to  injure 
the  discipline  of  the  crew  of  another  ship,  Bangs  v.  Little.  1  Ware  520  (1839). 
-  The  force  must  be  shown  to  be  clearly  excessive,  Butler  v.  McLean,  1 
Ware  220  (1832)  ;  Benton  v.  Whitney,  1  Crabbe  417  (1841),  for  the  reasons 
which  require  that  the  master  shall  have  a  wide  discretion  as  to  when  and 
how  to  use  violence  to  maintain  discipline,  see  Ware  J.  in  Bangs  v.  Little,  1 
Ware  520  (1839),  and  Hopkinson  J.  in  Benton  v.  Whitney,  1  Crabbe  417 
(1841).  In  Forbes  v.  Parsons,  Crabbe  283  (1839),  Hopkinson  J.  says.  p. 
288,  that  recovery  should  be  allowed  "first,  when  personal  violence  was  af- 
flicted upon  him,  although  not  excessively,  wantonly  and  without  any  provo- 
cation or  cause;  second,  when  provocation  and  cause  were  given  by  the 
seaman  but  the  punishment  was  cruel  and  excessive,  having  no  reasonable 
proportion  to  the  provocation  or  fault  for  which  it  was  inflicted;  third.  I 
have  always  looked  with  a  severe  eye  to  the  instrument  used  in  punishing." 
A  rope,  he  regards  as  the  proper  punishment,  the.  fist  barely  permissible, 
while  the  use  of  a  handspike,  bludgeon,  sword,  or  other  deadly  weapon, 
when  there  is  no  appearance  of  mutiny,  Schelter  v.  York,  1  Crabbe  449 
(1841),  or  stamping  upon  the  seaman  when  prostrate,  are  said  to  be  clearly 
improper.  But  when  there  is  cause  and  a  proper  instrument  is  used,  he 
says,  "I  cannot  institute  a  nice  or  scrupulous  comparison  between  the  of- 
fense of  the  sailor  and  the  number  or  violence  of  the  blows  inflicted  upon 
him  for  it." 

A  sailor  may  be  corporally  chastised  as  well  as  imprisoned  in  punish- 
ment for  a  past  offense.  The  Lozvther  Castle,  1  Hagg.  Adm.  384  (1825)  ; 
Michaelsvn  V.  Dennison,  3  Day  294  (1808);  Citv  of  Mobile,  116  Fed.  212 
(1902),  though  in  Padmore  v.  Piltz,  44  Fed.  104  (1890),  it  was  held  that 
a  sailor  may  not  be  punished  for  insubordination,  the  ship  being  in  a  civil- 
ized port.  Except  under  exceptional  circumstances  requiring  immediate 
action,  punishment  should  not  be  inflicted  without  inquiry  and  hearing  the 


m 

954  BROWN    V.    HOWARD. 

mates  having  been  acquainted  with  the  whole  transaction,  I  can 
perceive  no  ground  upon  which  they  can  be  exonerated  as  parties, 
nor,  of  course,  admissible  as  witnesses.  The  judgment  below  must, 
accordingly,  be  affirmed. 

Judgment  affirmed. 

sailor  in  his  own  defense,  The  Agincourt,  1  Hagg.  Adm.  271  (1824)  ;  Mur- 
ray V.  Moutrie,  6  C.  &  P.  471  (1834). 

The  master  of  a  vessel  has  the  right  to  use  force  to  preserve  decent 
discipHne  among  its  passengers,  and  may  imprison  a  disorderly  passenger. 
Boyce  v.  Bayliffe,  1  Camp.  58  (1807),  but  he  may  not  do  so  merely  because 
such  passenger  shows  him  disrespect,  King  v.  Franklin,  1  F.  &  F.  360  (1858), 
passenger,  during  a  dispute  in  regard  to  playing  cards,  called  the  captain 
"the  landlord  of  a  floating  hotel";  Aldworth  v.  Stewart,  4  F.  &  F.  957  (1866), 
passenger  assaulted  and  imprisoned  for  putting  his  fingers  to  his  nose  at  the 
captain  in  the  course  of  a  complaint  in  regard  to  the  character  of  the  food 
furnished. 


I 


Part 


2. 


Acts  Harmful  to  Others  Excused  Because  Freedom 

of  Action  or  the  Act  is  Regarded  as 

of  Social  Benefit. 


CHAPTER  I. 

Conduct  Excused  Because  of  the  Necessity  of  Preserving  the 

Independence  of  the  Sovereign  in  Its  Dealings 

With  Other  Nations. 


UNDERHILL  v.  HERNANDEZ. 

United  States  Court  of  Appeals,  1897.     168  U.  S.  250. 

Hernandez  was  in  command  of  a  revolutionary  army  in  Vene- 
zuela when  an  engagement  took  place  with  the  government  forces 
which  resvilted  in  the  defeat  of  the  latter,  and  the  occupation  of 
Bolivar  by  the  former.  Underhill  was  living  in  Bolivar,  where  he 
had  constructed  a  waterworks  system  for  the  city  under  a  contract 
with  the  government,  and  carried  on  a  machinery  repair  business. 
He  applied  for  a  passport  to  leave  the  city,  which  was  refused  by 
Hernandez  witJi_5LJ^ew  to  coerce  him  to  operate  his  waterworks 
and  his  repair  works  for  the  benefit  of  the  community  and  the  revo- 
lutionary forces.  Subsequently  a  passport  was  given  him.  The 
revolutionary  government  under  which  Hernandez  was  acting  was 
recognized  by  the  United  States  as  the  legitimate  government  of 
^'enezuela.  Subsequently  Underhill  sued  Hernandez  in  the  Circuit 
Court  for  the  Second  Circuit  to  recover  damages  caused  by  the  re- 
fusal to  grant  the  passport,  for  alleged  confinement  of  him  to  his 
own  house,  and  for  alleged  assaults  and  affronts  by  Hernandez'  sol- 
diers. Judgment  being  rendered  for  defendant  the  case  was  takers 
to  the  Circuit  Court  of  Appeals,  where  the  judgment  was  affirmed. 
Thereupon  the  case  was  brought  to  this  court  on  certiorari. 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered, 
the  opinion  of  the  court. 

Every  sovereign  state  is  bound  to  respect  the  independence  of 
every  other  sovereign  state,  and  the  courts  of  one  country  will  not 
sit  in  judgment  on  the  acts  of  the  government  of  another  done 
within  its  own  territory.     Redress  of  grievances  by  reason  of  such 

955 


CjC^S  UNDERIIILL    Z'.    HERNANDEZ. 

acts  must  be  obtained  through  the  means  open  to  be  availed  of  by 
sovereign  powers  as  between  themselves. 

Nor  can  the  principle  be  confined  to  lawful  or  recognized  gov- 
ernments, or  to  cases  where  redress  can  manifestly  be  had  through 
""public  channels.  The  immunity  of  individuals  from  suits  brought 
in  foreign  tribunals  for  acts  done  within  their  own  States,  m  the 
exercise  of  governmental  authority,  whether  as  civil  officers  or  as 
military  commanders,  must  necessarily  extend  to  the  agents  of  gov- 
ernments ruling  by  paramount  force  as  matter  of  fact.  Where  a 
civil  war  prevails,  that  is,  where  the  people  of  a  couhtry  are  divided 
into  two  hostile  parties,  who  take  up  arms  and  oppose  one  another 
by  military  force,  generally  speaking  foreign  nations  do  not  assume 
to  judge  of  the  merits  of  the  quarrel.  If  the  party  seeking  to  dis- 
lodge the  existing  government  succeeds,  and  the  independence  of 
the  government  it  has  set  up  is  recognized,  then  the  acts  of  such 
government  from  the  commencement  of  its  existence  are  regarded 
as  those  of  an  independent  nation.  If  the  political  revolt  fails  of 
success,  still  if  actual  war  has  been  waged,  acts  of  legitimate  war- 
fare cannot  be  made  the  basis  of  individual  liability.  United  States 
V.  Rice,  4  Wheat.  246 ;  Fleming  v.  Page,  9  How.  603  ;  Thorington  v. 
Smith,  8  Wall,  i  ;  Williams  v.  Bruffy,  96  U.  S.  176;  Ford  v.  Surgett, 
97  U.  S.  594;  Dozv  V.  Johnson,  100  U.  S.  158;  and  other  cases.^ 


CHAPTER  II. 

Conduct  Excused  When  Necessary  to  Secure  the  Proper  Admin- 
istration of  Justice. 


SECTION  1. 


Immunity  of  the  Judiciary. 

Glanville—Book  8,  Chapter  9—{Ca.  1,200)  Beanie's  Edition,  p.  210. 

"If  any  one  should  declare  against  the  Court  for  passing  a  false  Judg- 
ment, and,  therefore  false,  because  when  one  party  had  said  thus,  and  the 
other  answered  thus,  the  Court  in  question  had  judged  falsely  of  their  allega- 
tions by  deciding  in  such  words,  and  that  the  Court  had  given  such  false 
Judgment  by  the  mouth  of  N.;  and,  if  he  were  disposed  to  deny  the  present 

^"The  transactions  of  independent  states  between  each  other  are  gov- 
erned by  other  laws  than  those  which  municipal  courts  administer;  sucn 
•courts  have  neither  the  means  of  deciding  what  is  right,  nor  the  power  of 
enforcing  any  decision  that  thev  make."  Secretary  of  State  in  Council  of 
India  V.  Kamachce  Boye  Sahaba,  13  Moo.  P.  C.  22  (1859),  p.  75,  "The 
appeal  is  to  the  sword  and  to  almighty  Justice,  and  not  to  courts  of  law  or 
equitv.  In  the  exercise  of  sovereign  right,  the  sovereign  is  sole  arbiter  of 
his  own  justice.  The  penalty  of  wrong  is  war  and  subjugation."— Johnson,  J. 
in  Cherokee  Nation  v.  Georgia,  5  Peters  1   (U.  S.  1831),  P-  28. 

Nor  can  a  foreign  subject  maintain  an  action  against  an  official  for  acts 


ANDERSON    V.    GORRIE.  957 

charge,  the  other  was  prepared  to  prove  it  against  him,  chiefly  by  such  proper 
witness,  who  was  ready  to  enter  upon  the  proof.  Thus  may  the  matter,  and 
that  very  properly,  be  decided  by  the  Duel.^  But,  whether  such  Court  is 
obliged  to  defend  itself  by  one  of  its  own  members,  or  may  have  recourse 
to  a  stranger,  may  be  questioned?'' 


ANDERSON  v.  GORRIE. 
Court  of  Appeal,  1894.     1895  Law  Reports,  1  Queen's  Bench  Div.  668. 

Lord  Esher,  M.  R.  In  this  case  an  action  was  brought  by  the 
plaintiff  against  several  judges  of  the  Supreme  Court  of  a  colony 
for  damages  for  wrongful  acts  done  by  them  in  committing  him  for 
contempt  of  Court,  and  in  holding  him  to  excessive  bail. 

The  defendants  were  judges  of  a  Supreme  Court  in  a  colony, 
and  the  first  question  is  whether  these  matters  were  matters  with 
which  they  had  jurisdiction  to  deal.  As  to  the  contempt  of  Court, 
it  cannot  be  denied  that  they  had  jurisdiction  to  inquire  whether  a 
contempt  had  been  committed,  and,  further,  it  cannot  be  denied  that 
they  had  power  to  hold  a  person  to  bail  in  the  cases  provided  for  by 
the  colonial  statute  which  expressly  gives  that  power.  These  two 
matters  were  obviously  within  the  jurisdiction  of  the  Court.  No 
one  can  doubt  that  if  any  judge  exercises  his  jurisdiction  from  ma- 
licious motives  he  has  been  guilty  of  a  gross  dereliction  of  duty; 
but  the  question  that  arises  is  what  is  to  be  done  in  such  a  case.  In 
this  country  a  judge  can  be  removed  from  his  office  on  an  address 
by  both  Houses  of  Parliament  to  the  Crown.  In  a  colony  such  an 
address  is  not  necessary.  The  governor  of  the  colony  represents 
the  Sovereign,  and  over  him  is  the  Secretary  of  State  for  the  Col- 
onies, who  represents  Her  Majesty  and  can  direct  the  removal  of 
the  judge.  But  the  existence  of  a  remedy  would  not  in  either  of 
these  cases  of  itself  prevent  an  action  by  a  private  person ;  so  that 
the  question  arises  whether  there  can  be  an  action  against  a  judge 
of  a  Court  of  Record  for  doing  something  within  his  jurisdiction, 
but  doing  it  maliciously  and  contrary  to  good  faith.  By  the  com- 
mon law  of  England  it  is  the  law  that  no  such  action  will  lie.  The 
ground  alleged  from  the  earliest  times  as  that  on  which  this  rule 

injurious  to  him,  if  the  official's  action  is  done  under  the  antecedent  command 
of  his  government  or  is  ratified  by  its  subsequent  approval  and  adoption,  Riiaii 
V.  Perry,  3  Caines,  120  (N.  Y.  1805)  ;  Durand  v.  Hollins,  4  Blatchf.  451 
(Dist.  Ct.  U.  S.  1860),  property  destroyed  in  bombardment  of  Greytown, 
Nicaragua;  Buron  v.  Dennian,  2  Exch.  167   (1848). 

The  Privy  Council  have  regarded  the  dealings  of  the  East  India  Com- 
pany, and  the  Indian  Empire  as  its  successor,  with  independent  native  states 
and  their  subjects  as  within  this  principle.  Secretarv  of  State  in  Council  of 
India  v.  Kamachee  Boye  Sahaba,  13  Moo.  P.  C.  22  (1859). 

^  "The  liberty  of  falsifying  a  Judgment  was  allowed  by  the  Assises  of 
Jerusalem.  But  the  person,  availing  himself  of  this  dangerous  privilege, 
seems  to  have  been  obliged  to  fight  all  the  persons  composing  the  Court,  not 
merely  the  Judges,  but  the  Suitors,  one  after  the  other.  Under  these  cir- 
cumstances, the  privilege  would,  probably,  not  often  be  claimed.  (Assis.  de 
Jerusalem,  c.  111.)" 


gs^g  ANDERSON    V.    GORRIE. 

rests  is  that  if  such  an  action  would  He  the  judges  would  lose  their 
independence,  and  that  the  absolute  freedom  and  independence  of 
the  judges  is  necessary  for  the  administration  of  justice.  That  is 
the  ground  stated  in  Miller  v.  Hope,  2  Shaw  Sc.  App.  Cas.  125,  in 
the  year  1824,  by  Lord  Gififord  by  his  judgment  in  the  House  of 
Lords ;  and  in  1892,  in  Haggard  v.  Pelicier  Frcrcs,  (1892)  A.  C.  61, 
at  p.  68,  Lord  Watson  says :  "It  is  due  to  the  appellant  to  state  that 
the  respondents  in  their  pleadings  make  no  imputation  of  dishon- 
esty, although  their  Lordships  do  not  mean  to  suggest  that  such  an 
imputation,  if  it  had  been  made  and  proved,  would  have  deprived 
him  of  the  immunity  which  the  law  accords  to  a  judge  in  his  posi- 
tion." Crompton  J.  in  Fray  v.  Blackburn,  3  B.  &  S.  576,  at  p.  578, 
said :  "It  is  a  principle  of  our  law  that  no  action  will  He  against  a 
judge  of  one  of  the  superior  Courts  for  a  judicial'act,  though  it  be 
alleged  to  have  been  done  maliciously  and  corruptly.  *  *  *  The 
public  are  deeply  interested  in  this  rule,  which  indeed  exists  for 
their  benefit,  and  was  established  in  order  to  secure  the  independence 
of  the  judges,  and  prevent  their  being  harassed  by  vexatious  ac- 
tions." 

The  reasons  "for  the  rule  were  more  fully  stated  by  Kelly  C.  B. 
in  Scott  V.  StansHcld,  Law  Rep.  3  Ex.  220.  If  a  judge  goes  beyond 
his  jurisdiction  a  different  set  of  considerations  arise.  The  only 
difference  between  judges  of  the  Superior  Courts  and  other  judges 
consists  in  the  extent  of  their  respective  jurisdiction.^  It  follows 
from  what  I  have  said  that,  taking  the  findings  of  the  jury  to  be  true 
to  the  fullest  extent,  the  action  will  not  lie  against  the  defendant, 
and  the  appeal  must  be  dismissed. 

Kay,  L.  J.  I  am  of  the  same  opinion.  I  take  the  law  to  be 
clear  that  for  an  act  done  by  a  judge  in  his  capacity  of  judge  he 
cannot  be  made  liable  in  an  action,  even  though  he  acted  maliciously 
and  for  the  purpose  of  gratifying  private  spleen.  It  cannot  be  de- 
nied that  all  the  acts  complained  of  were  done  by  the  defendant  in 
his  capacity  of  judge,  and  whether  he  acted  rightly  or  wrongly  can- 
not be  questioned  in  this  action.  Agreeing  entirely  with  what  the 
Master  of  the  Rolls  has  said,  and  with  the  judgment  of  Kelly  C.  B. 
in  Scott  V.  Stansficld,  Law  Rep.  3  Ex.  220,  I  come  to  the  conclusion 
that  this  action  wall  not  lie.- 

Appeal  dismissed. 

^  "There  is  a  marked  distinction  between  courts  of  general  jurisdiction 
and  inferior  tribunals  having  only  a  special  or  limited  jurisdiction.  In  the 
former  case,  the  presumption  of  law  is  that  they  had  jurisdiction  until  the 
contrary  is  shown;  but  with  regard  to  inferior  courts  and  magistrates,  it 
is  for  them,  when  claiming  any  right  or  exemption  under  their  proceedings, 
to  show  affirmatively  that  thcv  acted  within  the  limits  of  their  jurisdiction." 
— Bigelow,  J.  in  Piper  v.  Pearson,  2  Gray  120  (Mass.  1854)  ;  Lund  v.  Hennes- 
sey. 67  111.  App.  233  (1896),  but  see  Wright  v.  Hazen  &  Gordon,  24  Vt.  143 

^^^  ^Accord:  Lib.  Ass.  27  Ed.  III.  p.  18  (1352)  :  Y.  B.  9  Hen.  VI,  60.  pi. 
9  (1430)  ;  Y.  B.  9  Edw.  IV,  3  pi.  10  (1469)  ;  27  Edw.  VI,  67,  pi.  49  (1572)  ; 
Floyd  v  Barker,  12  Coke  23  (1608)  ;  Hammond  v.  Howell,  2  Mod.  218 
(1688),  cited  in  Yates  v.  Lansing,  5  Johns.  282  (N.  Y.  1810).  by  Kent,  C  J.; 
Frav  v  Blackburn,  3  B.  &  S.  576  (1863);  Bradley  v.  Fisher,  13  Wall.  335 
(U"S    S.  C.  1871);   Woodruff  v.  Stewart,  6Z  Ala.  206  (1879);  Borden  v 


MC  CREADIE   V.    THOMSON.  959 

McCREADIE  v.  THOMSON. 

Court  of  Session,  1907.     1907  Session  Cases,  1176. 

Lord  Justice-Clerk. — This  case  raises  a  question  of  much 
importance.  The  pursuer  asks  for  damages  from  a  Magistrate  sit- 
ting in  a  summary  Court  on  the  ground  that  he  sentenced  her  to  im- 
prisonment without  the  option- of  a  fine,  under  a  complaint  based 
upon  a  clause  of  a  statute  which  did  not  empower  him  to  pronounce 
a  sentence  of  imprisonment  except  as  an  alternative  to  the  nonpay- 
ment of  a  pecuniary  penalty,  the  prayer  of  the  complaint  being  in 
terms  of  the  statute.  She  alleges  that  although  it  was  pointed  out 
by  the  clerk  as  the  Court's  assessor  that  such  a  sentence  could  not  be 
pronounced,  he  insisted  on  inflicting  it,  on  the  view  that  he  could 
deal  with  the  matter,  not  as  it  was  charged  in  the  complaint,  but  as 
constituting  an  offence  at  common  law,  viz.,  a  breach  of  the  peace. 


State.  11  Ark.  519  (1851)  ;  Hughes  v.  McCoy,  11  Colo.  591  (1888)  ;  Elmore 
V.  Overton,  104  Ind.  548  (1885),  scmble;  Harrison  v.  Redden,  53  Kans.  265 
(1894),  where  a  judge  was  accused  of  having  notified  a  defendant  of  the 
plaintiff's  intention  to  sue  for  alimony  and  having  advised  him  to  leave  the 
jurisdiction;  Stewart  v.  Coolev,  23  Minn.  347  (1877),  semble;  Yates  v.  Lan- 
sing, 5  Johns.  282  (N.  Y.  1810):  Lanqe  v.  Benedict.  7Z  N.  Y.  12  (1878); 
Ross  V.  Rittenhouse,  2  Dall.  160  (Pa.  1792),  1  Yeats  443  (Pa.  1795)  ;  Brodie  v. 
Rutledge,  2  Bay  69  (S.  Car.  1796)  ;  Cope  v.  Ramsey,  2  Heisk.  197  (Tenn. 
1870.)  This  privilege  extends  to  "every  judge,  whether  of  a  higher  or  lower 
court,  exercising  the  jurisdiction  vested  in  him  by  law,"  Shaw,  C.  J.,  Pratt 
V.  Gardner,  2  Cush.  63  (Mass.  1848),  including  justices  of  the  peace,  magis- 
trates, etc.,  Cunningham  v.  DiUiard.  4  Dev.  &  B.  351  (N.Car.  1839)  ;  Pepper 
V.  Mayes,  81  Ky.  673  (1884)  ;  Pansier  v.  Parsons,  6  W.  Va.  486  (1873)  ;  Reid 
V.  Hood,  2  N.  &  McC.  168  (S.  Car.  1819)  ;  Lund  v.  Hennessey,  67  111.  App. 
233  (1896)  ;  Sorensen  v.  Wellman,  69  Kans.  637  (1904)  ;  Tylor  v.  Alford,  38 
Maine  530  (1854)  ;  Cur  now  v.  Kessler,  110  Mich.  10  (1896)  ;  Storxe  v.  Graves, 
8  ^lo.  148  (1843)  ;  Burnham  v.  Stevens,  2>3  \.  H.  247  (1856)  ;  Handshaw  v. 
Arthur,  161  N.  Y.  664  (1900);  Hanna  v.  Slevin,  8  Pa.  S.  C.  509  (1898); 
Hoggatt  v.  Biglev,  6  Humph.  236  (Tenn.  1845)  ;  Gaines  v.  Newbrough,  12 
Tex.  Civ.  App.  466  (1896);  Cooke  v.  Bangs,  31  Fed.  640  (1887),  compare 
Yates  V.  Lansing,  5  Johns.  282  (N.  Y.  1810). 

While  for  a  time  it  seemed  to  be  doubtful  whether  British  judges  of 
courts  not  of  record  were  liable  for  malicious  or  corrupt  exercise  of  their 
judicial  powers.  Clerk  &  Lindsell  on  Torts,  6th  ed.  (1912),  pp.  808-809,  a 
consular  court,  which  was  not  a  court  of  record,  was  held  entitled  to  pro- 
tection equal  to  that  given  such  courts.  Haggard  v.  Pelicier  Frcres,  L.  R. 
1892  A.  C.  61.  Some  American  jurisdictions  lay  down  the  rule  that  a 
Justice  of  the  Peace  or  other  inferior  judge,  is  not  liable  unless  he 
acts  maliciously  or  corruptly.  Baker  v.  Morgan,  5  Ky.  L.  323  (1883); 
but  see  Pepper  v.  Mayes,  81  Ky.  673  (1884);  Gault  v.  Wallis,  53  Ga.  675 
(1875);  Heath  v.  Half  hill,  106  Iowa  131  (1898);  Knell  v.  Briscoe,  49  Md. 
414  (1878);  while  m  Stewart  v.  Cooley,  23  Minn.  347  (1877),  it  is  held, 
while  the  motives  which  prompt  the  judicial  action  of  a  judge  are  imma- 
terial, he  may  be  liable  for  participating  in  a  conspiracy  with  a  suitor  to 
injure  the  plaintiff  by  the  abuse  of  his  judicial  function. 

As  to  the  immunity  of  public  officers,  as  such  exercising  quasi-judicial 
functions,  such  as  tax  assessors  or  selectmen  appraising  property  for  taxation. 
Weaver  v.  Devendorf,  3  Denio  117  (N.  Y.  1846)  ;  Fawcett  v.  Dole,  67  N.  H.  168 
(1891)  ;  Stearns  v.  Miller,  25  Vt.  20  (1852),  or  dividing  among  churches  the 
rents  from  land,  granted  for  their  use.  Univ.  Soc.  v.  Leach.  35  Vt.  108  (1862). 
a  city  council  awarding  contracts,  East  River,  etc.,  Co.  v.  Donnelly,  92  N.  Y.  557 


960  MC  CREADIE    V.    TIIOMSOX. 

for  which  he  had  by  law  the  power  to  pronounce  a  sentence  of  im- 
prisonment as  a  direct  punishment.  That  he  erred  in  this  cannot  be 
doubted,  and  that  consequently  he  acted  outwith  and  in  excess  of  his 
jurisdiction  is  equally  plain.  The  cjuestion  now  before  the  Court  is 
whether  an  action  of  damages  can  be  competently  and  relevantly 
raised  against  him  in  these  circumstances-. 

We  had  the  advantage  of  a  very  able  and  full  argument  from 
the  Bar,  the  one  party  alleging  that  a  Judge  sitting  as  the  defender 
did  is  immune  from  all  action  at  law  for  damages  for  anything  done 
by  him  when  sitting  in  his  judicial  capacity;  the  other  party  main- 
taining that  while  such  immunity  from  attack  in  a  Court  of  law  ap- 
plies to  Judges  of  superior  jurisdiction,  there  is  no  law  to  the  effect 
that  inferior  Magistrates  may  not  be  called  upon  to  make  reparation 
where  they  have  gone  outside  their  powers  and  inflicted  a  wrong,,/ 

Upon  the  question  of  immunity  of  the  Judges  of  the  Supreme 
Court  there  can  be  no  doubt.  The  principle  is  clear  and  the  de- 
cisions are  emphatic.  The  principle  is  that  such  Judges  are  the 
King's  Judges  directly,  bound  to  administer  the  law-  between  his 
subjects  and  even  between  his  subjects  and  himself.  To  make 
them  amenable  to  actions  of  damages  for  things  done  in 
their  judicial  capacity,  to  be  dealt  with  by  Judges  only  their 
equals  in  authority  a.nd  by  juries,  would  be  to  make  them  not 
responsible  to  the  King,  but  subject  to  other  considerations  than 
their  duty  to  him  in  giving  their  decisions,  and  to  expose 
them  to  be  dealt  with  as  servants  not  of  him  but  of  the  public. 


(1883),  a  superintendent  of  a  State  Insane  Asylum  determining  that  a  per- 
son should  be  detained  as  dangerously  insane,  Van  Deusen  v.  Newcomer,  40 
Mich.  90  (1879),  a  surveyor  general  revoking  the  commission  of  a  deputy, 
Reed  v.  Conway,  20  Mo.  22  (1854),  a  superintendent  of  schools  refusing  to 
issue  a  teacher's  license,  Elmore  v.  Overton,  104  Ind.  548  (1885),  see  Dona- 
hoe  V.  Richards,  38  Maine  379  (1854),  there  is  a  conflict  of  authority,  in 
Weaver  v.  Devendorf  and  East  River  Co.  v.  Donnelly,  their  immunity  is  held 
to  be  as  complete  as  that  of  judges;  in  Van  Deusen  v.  Newcomer,  they  are 
held  not  liable  for  "acts  done  understandingly  and  in  good  faith";  in  Faw- 
cett  V.  Dole,  assessors  are  said  not  to  be  liable  "for  errors  of  judgment,  un- 
intentional mistakes,  irregularities  or  illegalities  in  the  assessm-ent" ;  in  Reed 
V.  Conway,  they  are  held  liable  only  if  they  act  maliciously  or  corruptly,  see 
Pepper  v.  Mayes,  81  Ky.  673  (1884),  and  Elmore  v.  Overton,  and  Donahoe  v. 
Richards,  where,  though  it  is  said  that  their  functions  are  not  judicial  but  ad- 
ministrative, liability  is  held  to  depend  on  proof  of  malice  or  corrupt  motives; 
while  in  Stearns  v.  Miller  and  Univ.  Soc.  v.  Leach,  they  are  held  liable  for 
injurious  errors  due  to  fraud,  malice,  or  "want  of  common  care  and  skill." 
As  to  the  liability  of  officials  given  by  statute  the  power  to  destroy  prop- 
erty if  it  be  harmful  to  the  public,  as  horses  having  glanders,  etc.,  or  Boards 
of  Health  empowered  to  destroy  property  endangering  the  health  of  the 
community  or  of  officers  obeying  their  orders,  compare  Miller  v.  Norton, 
152  Mass.  540  (1891)  and  Pearson  v.  Zehr,  138  111.  48  (1891)  with  Raymond 
V.  Fish,  51  Conn.  80  (1883)  and  Valentine  v.  Englewood,  76  N.  J.  L.  509 
(1908). 

As  to  the  liability  of  election  officers  for  refusing  to  receive  the  vote 
of  a  qualified  voter,  compare  Morgan  v.  Dudley,  18  B.  Mon.  693  (Ky.  1857), 
Bevard  v.  Hoffman,  18  Md.  479  (1862),  holding  that  they  are  liable  only  if 
they  do  so  maliciously  or  from  corrupt  motives,  with  Lincoln  v.  Hapgood, 
11  Mass.  350  (1814),  where  a  mere  refusal  is,  without  more,  held  to  entail 
liability. 


MC  CREADIE   Z'.    THOMSON.  961 

Accordingly  the  remedy  in  this  case,  if  they  flagrantly  offend  against 
duty,  is  not  by  proceedings  in  any  Court,  but  only  by  addresses  to 
the  Crown  from  the  Houses  of  Parliament.  Between  their  position 
and  that  of  Judges  appointed  not  by  the  King  but  by  the  community 
or  some  authority  in  the  community  not  having  the  kingly  preroga- 
tive, but  only  acting  by  a  delegated  authority  for  local  administra- 
tion as  in  the  case  of  Justices  of  the  Peace  appointed  by  the  Lord 
Chancellor,  there  is  no  analogy.  Therefore  any  claim  for  immunity 
for  acts  done  in  local  summary  Courts  cannot  be  based  on  the  fact 
of  the  immunity  of  the  Supreme  Court  Judges.  That  the  highest 
Courts  of  justice  are  designated  "Supreme  Courts"  of  itself  indi- 
cates the  distinction.  The  Supreme  Courts  have  power  to  right 
wrongs  done  in  the  inferior  Courts,  their  jurisdiction  being  uni- 
versal, and  their  duty  being  to  see  justice  done  throughout  the  land. 
The  other  Courts  have  no  jurisdiction  beyond  their  own  border,  and 
cannot  review  the  conduct  of  any  other  Judge  within  their  border. 

Is  there,  then,  any  immunity  attaching  to  the  Judges  of  the  in- 
ferior Courts  for  their  actings  when  sitting  in  judgment?  Certainly 
there  is.  They  cannot  be  made  amenable  for  words  used,  however 
severely  they  may  comment  on  the  conduct  of  individuals,  provided 
such  words  are  uttered  where  acting  in  the  exercise  of  their  magis- 
terial functions.  Of  this  the  case  at  Waterston,  4  F.  783,  is  the 
latest  and  most  emphatic  instance. 

But  while  this  is  so,  it  is  a  totally  different  question  whether  a 
-Magistrate  who  when  sitting  as  such  does  official  acts  wdiich  he  has 
no  power  to  do  under  a  statute  in  accordance  with  which  he  is  bound 
to  act,  and  which  judicial  acts  have  the  effect  of  restraining  the 
liberty  of  the  subject,  and  subjecting  him  to  penalty  in  his  person, 
is  immune  from  civil  consequences  for  the  wrong  he  has  done.  I 
do  not  think  that  this  has  ever  been  held,  and  the  opposite  has  been 
held  in  many  cases.  Where  a  Magistrate  professing  to  sit  as  such, 
and  dealing  with  a  case  which  he  has  no  jurisdiction  to  deal  with  at 
all,  commits  what  is  an  undoubted  wrong  upon  a  citizen,  both  by 
principle  and  practice  he  i?,  held  liable  for  the  wrong  done.  If  that 
is  so,  can  it  be  said  that  a^Magistrate  who  has  before  him  a  case 
which  he  can  competently  try  under  an  Act  of  Parliament  on  which 
the  complaint  is  founded,  and  who,  instead  of  dealing  with  the  case 
as  it  is  before  him,  and  on  conviction  awarding  such  punishment  as 
the  Act  prescribes  and  allows,  proceeds  knowingly  to  pronounce  a 
sentence  which  is  not  competent  under  the  Act  of  Parliament,  and 
thereby  sends  a  person  to  prison  contrary  to  the  Act  of  Parlia- 
ment,— I  say,  can  it  be  said  that  he  is  in  any  more  favorable  posi- 
tion than  a  Magistrate  trying  a  case  in  circumstances  where  he  has 
no  jurisdiction?  In  the  one  case  his  sentence  is  illegal,  because  he 
has  no  complaint  before  him  on  which  he  can  pronounce  a  sentence 
at  all.  In  the  other  he  has  a  complaint  before  him,  on  which  he  can- 
not pronounce  the  sentence  which  he  does  pronounce.  The  wrong 
is  as  great  in  the  latter  case  as  in  the  former.  For  as  well  might  he 
have  no  jurisdiction  at  all  as  step  outside  the  jurisdiction  which  he 
does  possess,  to  do  something  which  he  could  not  do  if  he  held  him- 


q(32  MC  CREADIE   v.    THOMSON. 

self  within  the  limits  prescribed  to  him  by  the  law  under  which  he 
was  called  to  exercise  his  jurisdiction.  The  case  of  Groome  v.  For- 
rester, 5  Maule  &  Selwyn,  314,  decided  in  England,  is  a  forcible 
illustration  of  the  fact  that  there  may  be  liability  in  a  Magistrate, 
not  merely  for  acting  without  jurisdiction,  but  for  doing  an  act  in 
excess  of  the  jurisdiction  he  was  called  upon  to  exercise.  In  that 
case,  as  here,  the  Magistrate  could  have  pronounced  an  effective 
judgment,  under  which  incarceration  might  have  taken  place.  The 
mistake  made  was  that  while  the  thing  complained  of  was  that  an 
overseer  had  refused  to  obey  an  order  of  the  Court  by  delivering 
up  a  certain  book,  he  was  committed  till  he  should  have  delivered 
up  "all  and  every,  the  books,"  &c.  In  that  case  the  Magistrates  were 
held  liable  in  damages  for  "a  clear  excess  of  jurisdiction." 

Here  I  think  it  is  necessary  to  draw  a  distinction.  It  is  where 
the  error  committed  by  the  inferior  Magistrate  takes  effect  that  his 
liability  to  answer  for  the  wrong  done  arises.  It  is  not  for  what  he 
has  ordered,  but  for  what  he  has  caused  another  to  suffer  that  he  is 
amenable  to  the  law.  That  he  has  pronounced  an  illegal  sentence 
is  not  sufficient  to  subject  him  in  damages  if  nothing  has  been  done 
upon  it.  But  when  it  has  been  carried  out  so  that  the  wrong  has 
been  made  effective,  then  he  may  be  answerable.  This  is  illustrated 
by  the  English  case,  Bartojt  v.  Bricknell,  13  O.  B.  (Ad._&  El.  N.  S.) 
393,  where  an  illegal  sentence  ordering  confinement  in  the  stocks 
was  pronounced,  but  was  not  carried  out,  so  that  the  wrong  was  not 
suffered.  Accordingly  it  was  held  that  no  claim  for  damages  could 
be  sustained. 

It  only  remains  to  be  seen  whether,  under  the  legal  decisions 
which  have  been  pronounced,  it  can  be  held  that  in  such  a  case  as 
the  present,  in  which  a  Magistrate  sitting  in  a  Police  Court  has  pro- 
nounced a  sentence  of  imprisonment  for  a  term,  without  the  option 
of  a  fine,  where  he  had  no  jurisdiction  to  do  so,  he  is  free  from  any 
action.  I  am  unable  to  find,  after  an  examination  of  the  cases 
quoted  in  the  debate,  that  they  lead  to  any  such  conclusion.  One 
other  case  was  referred  to  in  reply  by  the  reclaimer — that  of  Ander- 
son V.  Gorrie,  L.  R.  ( 1895)  i  O.  B.  668.  That  case  also  has  no  bear- 
ing, being  the  case  of  a  Supreme  Court  Judge  of  a  colony,  and  it  was 
held  that  his  position  was  analogous  to  that  of  a  Supreme  Court 
Judge  in  this  country,  and  that  he  could  not  be  sued  for  an  act  done 
in  his  capacity  as  Judge,  whether  he  acted  rightly  or  wrongly. 

On  the  question  whether  in  this  case  it  is  necessary  to  aver 
specific  malice,  and  to  put  malice  in  issue,  I  concur  with  the  Lord 
Ordinary  that  the  case  being  one  in  which  the  wrong  complained 
of  was  an  entirely  ultra  vires  act  by  the  magistrate,  it  is  not  neces- 
sary for  the  pursuer  to  prove  malice.  I  adopt  the  words  of  Lord 
Pitmilly,  who  said  in  a  similar  case,  (Straclian  v.  Stoddart,  7  S.,  at 
p.  6) — "It  is  no  matter  whether  it  was  from  error  or  malice,  if 
.  .  .  grossly  illegal  and  irregular,  the  party  is  entitled  to  claim 
damages  alike  from  the  private  party  and  the  judge. ^  "~- 


^  Accord:    Crepps  v.  Burden,  2  Cowp.  640  (1777)  ;  Burlingham  v.  Wylee, 
2  Root  152  (Conn.  1794)  ;  Lanpher  v.  Dewell,  56  Iowa  153  (1881)  ;  Sheldon  v. 


HOULDEN    V.    SMITH.  963 

HOULDEN  V.  SMITH. 

Court  of  Exchequer,  1850.    14  Adolphiis  &  Ellis  (N.  S.)  841. 

Patterson,  J.  This  was  an  action  for  trespass  and  false  im- 
prisonment against  the  defendant,  the  judge  of  the  county  court  in 
Lincohishire.  The  defendant  pleaded  Not  guilty,  but  not  saying 
"by  statute ;"  also  a  plea  of  want  of  notice  of  action ;  but  the  notice 
w'as  proved  at  the  trial.  The  facts  appear  to  be  that  the  plaintiff, 
being  resident  in  Cambridgeshire,  was  sued  in  the  county  court  at 
Spilsby  in  Lincolnshire  by  special  order  of  the  defendant  under  the 
6oth  section  of  stat.  9  &  lo  Vict.  c.  95.  The  plaintiff  was  served 
with  the  summons  in  Cambridgeshire,  and  not  appearing,  judgment 
was  given  against  him  by  default  at  the  court  at  Spilsby  on  the  i8th 
of  August,  1847.  A  judgment  order  was  served  on  the  plaintiff  in 
Cambridgeshire  on  the  25th  of  August.  A  warrant  against  the 
goods  of  the  plaintiff  within  the  jurisdiction  of  the  Spilsby  court 
was  issued  on  the  I4tli  of  September,  which  was  transmitted,  under 
the  104th  section  of  the  Act,  (see  stat.  15  &  16  Vict.  c.  54,  s.  5.)  to 
the  county  court  in  Cambridgeshire,  and  returned  "no  effects."  So 
far  the  proceedings  were  all  regular.  On  the  21st  of  September  a 
summons  was  issued  by  order  of  the  defendant,  calling  on  the  plain- 
tiff to  appear  at  the  Spilsby  court  on  the  7th  of  October,  and  be  ex- 
amined as  to  his  not  paying  the  debt  and  costs,  and  as  to  his  estate 
and  effects.  This  summons  was  without  jurisdiction;  for  the  sec- 
tion, 98,  which  authorizes  the  issuing  such  summons,  directs  it  to 
be  issued  by  the  county  court  within  the  limits  of  which  the  party 
shall  then  dwell  or  carry  on  his  business ;  which  in  this  case  was  the 
county  seat  at  Cambridgeshire ;  for  in  that  county  only  the  plaintiff 
dwelt  and  carried  on  his  business  during  the  whole  of  these  proceed- 
ings. This  summons  was  served  on  the  plaintiff  in  Cambridgeshire 
on  the  27th  of  September.  On  the  7th  of  October  the  plaintiff  did 
not  appear  at  the  county  court  at  Spilsby ;  and,  the  service  of  the 
last  summons  having  been  proved,  the  defendant,  as  judge  of  the 
court,  believing  that  he  had  power  and  authority  to  do  so,  made  a 
minute  in  the  minute  book  of  the  court,  whereby  it  was  ordered  that 
the  plaintiff  should,  for  contempt  in  not  attending,  be  committed  to 


Hill,  33  Mich.  171  (1876);  Estopinal  v.  Peyroux,  37  La.  Ann.  477  (1885); 
Patzack  v.  Von  Gerichten,  10  Mo.  App.  424  (1881)  ;  and  see  Kennedy  v.  Bar- 
nett,  64  Pa.  141   (1870),  semblc. 

Contra:  Austin  v.  I'roonian,  128  N.  Y.  229  (1891)  ;  Handshazv  v.  Arthur. 
9  App.  Div.  175  (N.  Y.  1896),  161  N.  Y.  664  (1900)  ;  Sorensen  v.  Wellman,  69 
Kans.  637  (1904)  ;  Curnozu  v.  Kesslcr,  UO  Mich.  10  (1896)  ;  Comstock  \.  Eagle- 
ton,  11  Okla.  487  (1902),  holding  that  where  a  justice  of  the  peace  or  other 
inferior  judicial  officer  of  lirnited  jurisdiction  has  jurisdiction  of  the  subject 
matter  and  person,  he  is  no  more  liable  than  a  judge  of  a  superior  court  is  lia- 
ble though  his  action  is  in  excess  of  the  powers  conferred  upon  him  by  statute 
or  is  expressly  forbidden  thereby,  Bradlev  v.  Fisher,  13  Wall.  335  (U.  S. 
1871);  Yates  v.  Lansing,  5  Johns.  282  (N^  Y.  1810);  Hughes  v.  McCov,  11 
Colo.  591  (1888);  Robertson  v.  Parker,  99  Wis.  652  (1898);  cf.  Heller  v. 
Clarke,  121  Wis.  71  (1904);  see  Cooke  v.  Bangs,  31  Fed.  640  (1887),  and 
Robertson  v.  Hale,  68  N.  H.  538  (1896). 


()64  HOULDEN    f.    SMITH. 

Cambridge  gaol  for  fourteen  days.  A  warrant  was  made  out  ac- 
cordingly ;  and  he  was  so  committed. 

That  this  commitment  was  without  jurisdiction  is  plain;  that 
the  defendant  ordered  it  under  a  mistake  of  the  law  and  not  of  the 
facts  is  equally  plain ;  for  it  is  impossible  that  he  could  be  ignorant 
that  the  plaintiff  dwelt  and  carried  on  his  business  in  Cambridge- 
shire, the  service  of  all  the  processes  having  been  proved  to  have 
been  made  there,  and  the  defendant  having  originally  specially  al- 
lowed the  plaint  to  be  made  in  his  court,  within  the  jurisdiction 
of  which  the  cause  of  action  accrued,  the  defendant  (the  now  plain- 
tiff) residing  in  Cambridgeshire.  This  case  is  not  therefore  within 
the  principle  of  Loivther  v.  The  Earl  of  Radnor.  8  East,  113,  119, 
or  Gzi'inne  v.  Poole,  2  Lutw.  Appendix,  1560,  1566,  where  the  facts 
of  the  case,  although  subsequently  found  to  be  false,  were  such  as, 
if  true,  would  give  jurisdiction,  and  it  was  held  that  the  question  as 
to  jurisdiction  or  not  must  depend  on  the  state  of  facts  as  they  ap- 
peared to  the  magistrate  or  judge  assuming  to  have  jurisdiction.^ 
Here  the  facts  of  the  case,  which  were  before  the  defendant,  and 
could  not  be  unknown  to  him,  showed  that  he  had  no  jurisdiction ; 
and  his  mistaking  the  law  as  applied  to  those  facts  cannot  give  him 
even  a  prima  facie  jurisdiction,  or  semblance  of  any.  The  only 
questions,  therefore,  are,  whether  the  defendant  is  protected  from 
liability  at  common  law,  being  and  acting  as  the  judge  of  a  court  of 
record,  in  which  case  the  plea  of  Not  guilty  would  be  sufficient ;  or 
whether  he  is  protected  by  the  provisions  of  any  statute,  and  if  so, 
whether  he  can  take  advantage  of  such  statute,  having  omitted  the 
words  "by  statute"  in  his  plea  and  the  margin  of  it. 

As  to  the  first  question,  although  it  is  clear  that  the  judge  of  a 
court  of  record  is  not  answerable  at  common  law  in  an  action  for  an 
erroneous  judgment,  or  for  the  act  of  any  officer  of  the  court  wrong- 
fully done,  not  in  pursuance  of,  though  under  color  of,  a  judgment 
of  the  court,  yet  we  have  found  no  authority  for  saying  that  he  is  not 
answerable  in  an  action  for  an  act  done  by  his  command  and  author- 
ity when  he  has  no  jurisdiction.  Here  the  defendant  had  not  only  no 
jurisdiction  to  commit  the  plaintiff  to  the  gaol  of  Cambridgeshire, 
but  he  had  no  jurisdiction  to  summon  him  to  show  cause  why  he 
had  not  paid  the  debt.  The  summons  ought  to  have  been  issued  out 
of  the  county  court  of  Cambridge. 

We  cannot  therefore  hold  that  the  defendant  in  this  case  is  pro- 
tected from  liability  at  common  law. 

Is  he  then  protected  by  any  statute?  We  find  no  statute  which 
gives  such  protection.  The  statutes  of  21  Ja.  i,  c,  12,  s.  5,  and  42  G. 
3,  c.  85,  s.  6,  enable  the  defence,  when  it  exists,  to  be  given  in  evi- 
dence under  the  general  issue,  but  they  do  not  protect  a  party  acting 
without  jurisdiction;  and  now  even  that  privilege  of  pleading  the 


^Accord:  Cave  v.  Mountain,  1  Man.  &  Gr.  257  (1840) ;  Calder  v.  Halket, 
3  Moore  P.  C.  Cases  28  (1839)  ;  Pike  v.  Carter,  3  Bii^g.  78  (1825),  alitcr  where 
the  court  has  means  of  knowledge  of  which  he  should  have  availed  him- 
self: see  The  Case  of  Marshalsea,  10  Coke  68  b.  as  explained  by  Povvel  B.  in 
Gzi'inn  v.  Poole. 


GRO\E   ?'.    VAX    DUVN.  965 

general  issue  only  is  coupled  with  this  qualification,  that  the  plea 
must  be  stated  to  be  "by  statute,"  which  words  are  omitted  here. 
The  judgment  must  therefore  be  for  the  plaintiff. 

Judgment  for  plaintiff.^ 


GROVE  V.  VAN  DUYN. 

Court  of  Errors  and  Appeals,  1882.     44  A'.  /.  L.  654.  -^ 

On  error  to  the  Middlesex  Circuit. 

This  was  an  action  for  trespass  for  assault  and  unlawful  im- 
prisonment. The  defendant,  Cornelius  Van  Duyn,  pleaded  the  gen- 
eral issue  of  not  guilty  to  the  declaration,  which  was  in  its  usual 
form  in  trespass,  for  assault  and  unlawful  imprisonment. 

The  defendant  Charles  L.  Stout  also  pleaded  the  general  issue 
to  the  said  declaration,  and  gave  notice  of  special  matter  in  evidence 
under  said  plea,  setting  up  that  he  was  one  of  the  justices  of  the 
peace  of  the  county  of  Middlesex,  and  that  the  following  complaint 
was  made  before  him  by  Cornelius  Van  Duyn : 

State  of  New  Jersey,  Middlesex  county,  ss. — Cornelius  Van 
Duyn,  administrator  of  Samuel  Van  Tilburgh,  deceased,  of  the 
township  of  Franklin,  county  of  Somerset,  upon  his  oath  complains 
that  on  the  ist  day  of  December,  1879,  at  the  township  of  South 
Brunswick,  in  the  county  of  IMiddlesex,  Simeon  P.  Grove,  William 
H.  Grove,  Jr.,  and  Jediah  Higgins,  with  force  and  arms,  did  enter 
upon  the  lands  of  Samuel  Van  Tilburgh,  deceased,  and  with  force 
and  arms  did  unlawfully  carry  away  about  four  hundred  bundles  of 
cornstalks,  to  the  value  of  $8,  and  w^ere  engaged  in  carrying  other 
cornstalks  from  said  lands  of  said  Van  Tilburgh,  deceased ;  and 
therefore  he  prays  that  the  said  Simeon  P.  Grove,  William  H. 
Grove,  Jr.,  and  Jediah  Higgins  may  be  apprehended  and  held  to 
answer  said  complaint  and  dealt  with  as  law  and  justice  may  require. 

C.  Van  Duyn, 
Administrator. 
Sworn  and  subscribed  before  me  this  ist  day  of  December,  1879. 

Chas.  L.  Stout, 
Justice  of  the  Peace. 

Stout,  as  such  justice,  thereupon  issued  his  warrant  in  the  ordi- 
nary form,  directing  the  said  two  persons  and  the  said  Higgins  to 

^Accord'-  Terry  v.  Huntington,  Hard.  480  (1668);  Smith  v.  Bouchier,  2 
Strange  993  (1731)  ;  Wingate  v.  Waite,  6  M.  &  W,  739  (1840)  ;  Ely  v.  Thomp- 
son, 3  A.  K.  Marsh.  70  (Ky.  1820);  Piper  v.  Pearson,  2  Gray  120  (Mass. 
1854);  Selbv  v.  Plaits,  3  Chand.  183  (Wis.  1851);  Woodward  v.  Paine,  15 
Johns.  493  (N.  Y.  1818)  ;  Mitchell  v.  Galen,  1  Alaska  339  (1901)  ;  Craig  v.  Bur- 
nett, 32  Ala.  728  (1858)  ;  Rtisscll  v.  Perry,  14  N.  H.  152  (1843)  ;  Clark  v. 
Holmes,  1  Dougl.  390  (Mich.  1844)  ;  Call  v.  Pike,  66  Maine  350  (1876)  ;  and 
McVea  v.  Walker,  11  Tex.  Civ.  App.  46  (1895),  both  cases  where  the  magis- 
trate was  disquahfied  by  reason  of  relationship  to  one  of  the  parties;  Morgan 
V.  Allen,  27  N.  Car.  156  (1844),  value  of  matter  in  contr6versy  exceeded  that 
over  which  justices  had  jurisdiction ;  but  see  Young  v.  Herbert,  2  N.  &  McC. 
172  (S.  Car.  1819)  ;  Morrill  v.  Thurston.  46  Vt.  732  (1874)  ;  Vaughn  v.  Cong- 
don,  56  Vt.  Ill  (1883),  arrest  on  a  warrant  issued  upon  a  complaint  showing 
on  its  face  that  the  statute  of  limitation  had  run  on  the  offense  charged. 


C)66  GROVE   V.   VAX    DUVN. 

be  brought  before  him  to  answer  the  said  complaint ;  and  such  three 
persons  having  been  arrested  by  a  constable,  on  such  warrant,  and 
being  brought  before  such  justice,  and  having  waived  on  examina- 
tion, were  by  him  committed  to  the  jail  of  the  county  for  the  cause 
mentioned  in  the  complaint,  to  await  the  action  of  the  next  grand 
jury.  Having  given  bail  the  next  day  the  persons  so  arrested  were 
discharged,  and  thereupon  one  of  them,  William  H.  Grove,  Jr., 
brought  this  suit  in  trespass  for  the  above-mentioned  imprisonment. 
At  the  trial  the  plaintiff  was  nonsuited,  and  to  review  that  judgment 
this  writ  of  error  was  brought. 

For  the  plaintiff  in  error,  A.  V.  Schenk  and  E.  T.  Green. 
For  the  defendants  in  error,  /.  H.  Stezvart. 
The  opinion  of  the  court  was  delivered  by 
Beasley,  C.  J.  IMost  of  the  general  principles  of  law  pertain- 
ing to  that  branch  of  this  controversy  which  relates  to  the  alleged 
liability  of  the  defendant  in  this  suit,  who  was  a  justice  of  the  peace, 
are  so  completely  settled  as  not  to  be  open  to  discussion.  The  doc- 
trine that  an  action  will  not  lie  against  a  judge  for  a  wrongfuj  com- 
mitment, or  for  an  erroneous  judgrnent,  or  for  any  other  act  made 
or  done  by  him  in  his  judicial  capacity,  is  as  thoroughly  established 
as  are  any  other  of  the  primary  maxims  of  the  law.  Such  an  ex- 
emption is  absolutely  essential  to  the  very  existence,  in  any  valuable 
form,  of  the  judicial  office  itself ;  for  a  judge  could  not  be  either 
respected  or  independent  if  his  motives  for  his  official  actions  pr  his 
conclusions,  no  matter  how  erroneous,  could  be  put  in  question  at 
the  instance  of  every  malignant  or  disappointed  suitor.  Hence  we 
find  this  judicial  immunity  has  been  conferred  by  the  laws  of  every 
civilized  people.  That  it  exists  in  this  state  in  its  fullest  extent  has 
been  repeatedly  declared  by  our  own  courts.  Such  was  pronounced 
by  the  Supreme  Court  to  be  the  admitted  principle  in  the  case  of 
Little  V.  Moore,  i  South.  75  ;  Taylor  v.  Doremus,  i  Harr.  473  ;  Afan- 
gold  V.  Thorpe,  4  Vroom  134;  and  by  this  court  in  Loftus  v.  Fra:;, 
14  Vroom  667.  To  this  extent  there  is  no  uncertainty  or  difficulty 
whatever  in  the  subject. 

But  the  embarrassment  arises  where  an  attempt  is  made  to  ex- 
press with  perfect  definiteness  when  it  is,  the  acts  done  by  a  judge 
and  which  purport  to  be  judicial  acts,  are  such  within  the  meaning 
of  the  rule  to  which  reference  has  just  been  made.  It  is  said  every- 
where in  the  text-books  and  decisions,  that  the  officer,_  in  order  to 
entitle  himself  to  claim  the  immunity  that  belongs  to  judicial  con- 
duct, must  restrict  his  action  within  the  bounds  of  his  jurisdiction, 
and  jurisdiction  has  been  defined  to  be  "the  authority  of  the  law  to 
act  officially  in  the  particular  matter  in  hand."  Cooley  on  Torts  417. 
But  these  maxims,  although  true  in  a  general  way,  are  not  suf- 
ficiently broad  to  embrace  the  principle  of  immunity  that_  appertains 
to  a  court  or  judge  exercising  a  general  authority.  _  Their  defect  is 
that  they  leave  out  of  account  all  those  cases  in  which  the  officer  in 
the  discharge  of  his  public  duty  is  bound 'to  decide  whether  or  not 
a  particular  case,  under  the  circumstances  as  presented  to  him,  is 
within  his  jurisdiction,  and  he  falls  into  error  in  arriving  at  his  con- 


GROVE   Z'.    VAX    DUYN,  967 

elusion.     In  such  instance,  the  judge,  in  point  of  fact  and  law,  has 
no   jurisdiction,  according  to  the   definition  just  given,   over   "the 
particular  matter  in  hand,"  and  yet,  in  my  opinion,  very  plainly  he 
is  not  responsible  for  the  results  that  wait  upon  his  mistake.     And 
it  is  upon  this  precise  point  that  we  find  confusion  in  the  decisions. 
There  are  certainly  cases  which  hold  that  if  a  magistrate,  in  the  regu- 
lar discharge  of  his  functions,  causes  an  arrest  to  be  made  under  his 
warrant  on  a  complaint  which  does  not  contain  the  charge  of  a  crime 
cognizable  by  him,  he  is  answerable  in  an  action  for  the  injury  that 
lias  ensued.    But  I  think  these  cases  are  deflections  from  the  correct 
rule ;  they  make  no  allowance  for  matters  of  doubt  and  difficulty. 
If  the  facts  presented  for  the  decision  of  the  justice  are  of  uncertain 
signification  with  respect  to  their  legal  effect,  and  he  decides  one 
way,  and  exercises  a  cognizance  over  the  case ;  if  the  superior  court 
in  which  the  question  arises  in  a  suit  against  the  justice  differs  with 
him  on  this  close  legal  question,  is  he  open,  by  reason  of  his  error, 
to  an  attack  by  action?     If  the  officer's  exemption  from  liability  is 
to  depend  on  the  question  whether  he  had  jurisdiction  over  the  par- 
ticular case,  it  is  clear  that  such  officer  is  often  liable  under  such 
conditions,  because  the  higher  court,  in  deciding  a  doubtful  point 
of  law,  may  have  declared  that  some  element  was  wanting  in  the 
complaint  which  was  essential  to  bring  this  case  within  the  judicial 
competency  of  the  magistrate.    But  there  are  many  decisions  which, 
perhaps,  without  defining  any  very  clear  rule  on  the  subject,  have 
maintained  that  the  judicial  officer  was  not  liable  under  such  condi- 
tions.    The  very  copious  brief  of  the  counsel  of  the  defendants 
abounds  in  such  illustrations.    As  an  example,  we  may  refer  to  the 
old  case  of  Gzvynne  v.  Poole,  2  Lutw.  387,  in  which  it  was  held  that 
the  justice  was  justified  because  he  had  reason  to  believe  that  he  had 
jurisdiction,  although  there  was  an  arrest  in  an  action  which  arose 
out  of  the  justice's  jurisdiction.    This  case  has  been  since  approved 
in  Kemp  v.  Neville,  10  C  B.  (N.  S.)  550.    Here,  if  the  test  of  official 
liability  had  been  the  mere  fact  of  the  right  to  take  cognizance  over 
the  particular  matter  in  hand,  considered  in  the  light  of  strict  legal 
rules,  this  decision  would  have  been  the  opposite  of  what  it  is.     In 
the  same  way  the  subject  is  elucidated  in  Brittain  v.  Kinnard,  i  B. 
&  B.  432,  the  facts  being  a  conviction  by  a  justice  of  a  person  of 
having  gunpowder  in  a  certain  boat,  a  special  act  authorizing  the 
detention  of  any  suspected  boat ;  and  when  the  magistrate  was  sued 
in  trespass  for  an  illegal  conviction,  it  was  declared  that  the  plain- 
tiff, in  order  to  show  the  defendant's  want  of  cognizance  over  the 
proceedings  leading  to  the  conviction,  could  not  give  evidence  that 
the  craft  in  question  was  a  vessel  and  not  a  boat,  because  the  justice 
had  judicially  determined  that  point.    And  in  this  case  likewise,  the 
test  of  jurisdiction  in  the  magistrate  in  point  of  fact  and  of  law,  was 
rejected ;  an  inquiry  into  the  authority  by  force  of  which  the  pro- 
ceedings had  been  taken  being  disallowed  for  the  reason  that  sucii 
question  had  been  passed  upon  by  the  magistrate  himself,  the  point 
being  before  him  for  adjudication.     The  same  doctrine  was  pro- 
mulgated in  explicit  and  forcible  terms  by  Mr.  Justice  Field,  deliv- 
ering the  opinion  of  the  Supreme  Court  of  the  United  States,  in  the 


968 


GROVE   V.    VAX    DUYN. 


case  of  Bradley  v.  Fisher,  13  Wall.  335,  this  being  his  language: 
"If  a  judge  of  a  criminal  court,  invested  with  general  criminal  juris- 
diction over  offences  committed  within  a  certain  district,  should  hold 
a  particular  act  to  be  a  public  offence  which  it  is  not,  and  proceed 
to  the  arrest  and  trial  of  a  party  charged  with  such  act,  ...  no 
personal  liability  to  civil  action  for  such  acts  would  attach  to  the 
judge,  although  those  acts  would  be  in  excess  of  his  jurisdiction, 
or  of  the  jurisdiction  of  the  court  held  by  him,  for  these  are  particu- 
lars for  his  judicial  consideration,  whenever  this  general  jurisdiction 
over  the  subject-matter  is  invoked." 

These  decisions,  in  my  estimation,  stand  upon  a  proper  foot- 
ing, and  many  others  of  the  same  kind  might  he  have  referred  to, 
but  such  course  is  not  called  for,  as  it  must  be  admitted  that  there 
is  much  contrariety  of  results  in  this  field,  and  the  references  above 
given  are  amply  sufficient  as  illustrations  for  my  present  purposes. 
The  assertion,  I  think,  may  be  safely  made,  that  the  great  weight  of 
judicial  opinion  is  in  opposition  to  the  theory  that  if  a  judge,  as  a 
matter  of  law  and  fact,  has  not  jurisdiction  over  the  particular  case, 
that  thereby,  in  all  cases,  he  incurs  the  liability  to  be  sued  by  any 
one  injuriously  affected  by  his  assumption  of  cognizance  over  it. 
The  doctrine  that  an  officer  having  general  powers  of  judicature, 
must,  at  his  peril,  pass  upon  the  question,  which  is  often  one  dif- 
ficult of  solution,  whether  the  facts  before  him  place  the  given  case 
under  his  cognizance,  is  as  unreasonable  as  it  is  impolitic.  Such  a 
regulation  would  be  applicable  alike  to  all  courts  and  to  all  judicial 
officers  acting  under  a  general  authority,  and  it  would  thus  involve 
in  its  liabilities  all  tribunals  except  those  of  last  resort.  It  would 
also  subject  to  suit  persons  participating  in  the  execution  of  orders 
and  judgments  rendered  in  the  absence  of  a  real  ground  of  juris- 
diction. By  force  of  such  a  rule,  if  the  Supreme  Court  of  this  state, 
upon  a  writ  being  served  in  a  certain  manner,  should  declare  that 
it  acquired  jurisdiction  over  the  defendant,  and  judgment  should 
be  entered  by  default  against  him,  and  if,  upon  error  brought,  this 
court  should  reverse  such  judgment  on  the  ground  that  the  service 
of  the  writ  in  question  did  not  give  the  inferior  court  jurisdiction 
in  the  case,  no  reason  can  be  assigned  why  the  justices  of  the  Su- 
preme Court  should  not  be  liable  to  suit  for  any  injurious  conse- 
quence to  the  defendant  proceeding  from  their  judgment.  As  I 
have  said,  in  my  judgment,  the  jurisdictional  test  of  the  measure  of 
judicial  responsibility  must  be  rejected. 

Nevertheless,  it  must  be  conceded  that  it  is  also  plain  that  in 
many  cases  a  transgression  of  the  boundaries  of  his  jurisdiction  by 
a  judge,  will  impose  upon  him  a  liabilty  to  an  action  in  favor  of  the 
person  who  has  been  injured  by  such  excess.  If  a  magistrate  should, 
of  his  own  motion,  without  oath  or  complaint  being  made  to  him, 
on  mere  hearsay,  issue  a  warrant  and  cause  an  arrest  for  an  alleged 
larceny,  it  cannot  be  doubted  that  the  person  so  illegally  imprisoned 
could  seek  redress  by  a  suit  against  such  officer.  It  would  be  no 
legal  answer  for  the  magistrate  to  ass'ert  that  he  had  a  general 
cognizance  over  criminal  offences,  for  the  conclusive  reply  would 


GROVE   V.    VAX    DUVX.  969 

be,  that  this  particular  case  was  not,  by  any  form  of  proceeding,  put 
under  his  authority. 

From  these  legal  conditions  of  the  subject  m}-  inference  is,  that 
the  true  general  rule  with  respect  to  the  actionable  responsibility  of  a 
judicial  officer  having  the  right  to  exercise  general  powers,  is,  that 
he  is  so  responsible  in  any  given  case  belonging  to  a  class  over  which 
he  has  cognizance,  unless  such  case  is  by  complaint  or  other  pro- 
ceeding put  at  least  colorably  under  his  jurisdiction.  Whether  the 
judge  is  called  upon  by  the  facts  before  him  to  decide  whether  his 
authority  extends  over  the  matter,  such  an  act  is  a  judicial  act,  and 
such  officer  is  not  liable  in  a  suit  to  the  person  affected  by  his 
decision,  whether  such  decision  be  right  or  wrong.  But  when  no 
facts  are  present,  only  such  facts  as  have  neither  legal  value  nor 
color  of  legal  value  in  the  affair,  then,  in  that  event,  for  the  magis- 
trate to  take  jurisdiction  is  not,  in  any  manner,  the  performance  of 
a  judicial  act,  but  simply  the  commission  of  an  unofficial  wrong. 
This  criterion  seems  a  reasonable  one;  it  protects  a  judge  against 
the  consequences  of  every  error  of  judgment,  but  it  leaves  him  an- 
swerable for  the  commission  of  wrong  that  is  practically  wilful ; 
such  protection  is  necessary  to  the  independence  and  usefulness  of 
the  judicial  officer,  and  such  responsibility  is  important  to  guard  the 
citizen  against  official  oppression. 

The  application  of  the  above-stated  rule  to  this  case  must,  obvi- 
ously, result  in  a  judgment  affirming  the  decision  of  the  Circuit 
judge.  There  was  a  complaint,  under  oath,  before  this  justice,  pre- 
senting for  his  consideration  a  set  of  facts  to  which  it  became  his 
duty  to  apply  the  law.  The  essential  things  there  stated  were,  that 
the  plaintiff,  in  combination  with  two  other  persons,  "with  force 
and  arms,"  entered  upon  certain  lands,  and  "with  force  and  arms 
did  unlawfully  carry  away  about  four  hundred  bundles  of  corn- 
stalks, of  the  value,"  &c.,  and  were  engaged  in  carrying  other  corn- 
stalks from  said  lands.  By  a  statute  of  this  state,  (Rev.,  p.  244, 
§  99,)  it  is  declared  to  be  an  indictable  offence,  "if  any  person  shall 
wilfully,  unlawfully  and  maliciously"  set  fire  to  or  burn,  carry  off 
or  destroy  any  barrack,  cock,  crib,  rick  or  stack  of  hay,  corn,  wheat, 
rye,  barley,  oats  or  grain  of  any  kind,  *  *  *  or  any  trees,  herbage, 
growing  grass,  hay  or  other  vegetables,  &c.  Now  although  the  mis- 
conduct described  in  the  complaint  is  not  the  misconduct  described 
in  this  act,  nevertheless  the  question  of  their  identity  was  colorably 
before  the  magistrate,  and  it  was  his  duty  to  decide  it ;  and  under 
the  rule  above  formulated,  he  is  not  answerable  to  the  person  in- 
jured for  his  erroneous  application  of  the  law  to  the  case  that  was 
before  him. 

As  to  the  other  defendant,  all  he  did  was  to  make  his  complaint 
on  oath  before  the  justice,  setting  forth  the  facts  truly,  and  for  such 
an  act  he  could  not  be  held  liable  for  the  judicial  action  which  en- 
sued, even  if  such  action  had  been  extra-judicial.  But  as  the  case 
was,  as  we  have  seen,  brought  within  the  jurisdiction  of  the  judicial 
officer,  neither  this  defendant,  nor  any  other  person  could  be  treated 
as  a  trespasser  for  his  co-operation  in  procuring  a  decision  and  com- 


0^70  SULLIVAN   V.    JONES. 

mitment  which  were  vaHd  in  law,  until  they  had  been  set  aside  ty 
a  superior  tribunal. 

Let  the  judgment  be  affirmed. 

For  affirmance— The  Chancellor,  Chief  Justice,  Depue,  Dixon, 
Knapp,  Magie,  Parker,  Reed,  Van  Syckel,  Clement,  Cole,  Kirk, 
Green,  Paterson.     14. 

For  reversal — None.^ 


SULLIVAN  V.  JONES. 
Supreme  Court  of  Massachusetts,  1854.    2  Gray,  570. 

Trespass  for  false  imprisonment  of  the  plaintiff  on  an  execu- 
tion, issued  by  Jones,  a  justice  of  the  peace,  on  a  judgment  recovered 
before  him  against  the  plaintiff  on  a  debt  less  than  live  dollars ; 
which  execution  contained  a  command  to  the  officer,  for  want  of 
money  or  goods,  to  take  the  body  of  the  plaintiff,  and  commit  him 
to  prison ;  and  on  which  the  plaintiff,  by  the  direction  of  Jeremiah 
Russell^  the  other  defendant,  the  attorney  who  brought  the  suit  on 
which  the  judgment  was  recovered,  was  arrested  and  committed  to 
jail. 

Merrick,  J.  The  Rev.  Sts.  c.  97,  §§  44,  45,  expressly  declare 
that  no  person  shall  be  imprisoned  on  mesne  process  or  execution 
for  any  debt  less  than  five  dollars,  or  on  any  execution  issued  upon 
a  judgment  rendered  upon  a  former  judgment  founded  upon  such 
a  debt.  And  the  forms  of  all  executions  are  required  to  be  so  varied 
as  to  adapt  them  to  that  prohibition.  §  47.  In  view  of  these  pro- 
visions, there  can  be  no  doubt  that  the  command,  contained  in  the 
execution  which  was  issued  by  Jones  against  the  plaintiff,  to  take 
the  body  of  the  plaintiff  and  commit  him  to  the  Commonwealth's 
jail,  was  a  direct  violation  of  the  positive  requirements  of  the  law. 
This  is  not  denied  by  the  defendants.     But  their  defence  is  placed 


^Accord:  Busteed  v.  Parsons,  54  Ala.  393  (1875);  Mcintosh  v.  BiiUard, 
95  Ark.  227  (1910)  ;  Clark  v.  Spicer,  6  Kans.  440  (1870)  ;  Gillett  v.  Thiebold. 
9  Kans.  427  (1872)  ;  Rush  v.  Buckley,  100  Maine  322  (1905)  ;  Laudt  v.  Hilts, 
19  Barb.  283  (N.  Y.  1855)  ;  Ayers  v.  Russell,  50  Hun  282  (N.  Y.  1888)  ;  McCall 
v.  Cohen,  16  ~S.  Car.  445  (1881)  ;  Marks  v.  Sullivan,  9  Utah  12  (1893)  ;  see 
Austin  v.  Vrooman,  128  N.  Y.  229  (1891),  and  compare  Mitchell  v.  Foster, 
12  A.  &  E.  472  (1840),  and  Truesdcll  v.  Combs,  2>2>  Ohio  St.  186  (1877). 

In  determining  the  existence  of  facts  necessary  to  give  it  jurisdiction 
either  a  superior  court  of  limited  jurisdiction  or  a  justice  of  the  peace  acts  ju- 
dicially and  is  not  liable  for  error  in  taking  jurisdiction,  Lauge  v.  Benedict,  73 
N.  Y.  12  (1878),  semble,  Roderigas  v.  East  River  Savings  Institution,  63  N. 
Y.  460  (1875)  ;  Scott  v.  McXcal,  154  U.  S.  34  (1894). 

In  Thompson  v.  Jackson,  93  Iowa  376  (1895)  ;  Bell  v.  McKinney,  63  Miss. 
187  (1885),  and  Anderson  v.  Roberts,  35  S.  W.  416  (Tex.  Civ.  App.  1896), 
it  is  held  that  a  magistrate  is  not  liable  for  acting  outside  his  jurisdiction 
unless  he  does  so  knowingly  or  in  bad  faith,  and  see  Young  v.  Herbert,  2 
Nott  &  McC.  172  (S.  Car.  1819). 

In  Pratt  v.  Sanger,  4  Gray  84  (Mass.  1855),  it  is  held  that  a  justice  is 
liable  if  the  law  under  which  he  acts  is  unconstitutional,  but  compare  Clark  v. 
Spicer,  6  Kans.  140  (1870),  and  Cottarn  v.  Oregon,  98  Fed.  570,  (C.  C  Dist. 
of  Oregon  1899).^ 


SULLIVAN    V.    JONES.  9/1 

by  them  on  a  wholly  different  ground.  They  insist  that,  in  framing 
and  issuing  the  execution,  Jones  acted  in  his  judicial  capacity  as  a 
justice  of  the  peace,  and  for  that  reason  is  not  responsible  in  any 
civil  action  to  the  plaintiff  for  any  injurious  consequences  resulting 
from  it. 

If  the  position  assumed  by  the  defendants  could  be  maintained 
as  a  matter  of  fact,  the  consequence  contended  for  by  them  would 
undoubtedly  follow.  There  is  a  familiar  and  well-known  distinction 
between  the  judicial  and  ministerial  powers  and  duties  of  justices  of 
the  peace.  When  acting  in  the  former  capacity,  and  within  the 
limits  of  the  jurisdiction  conferred  upon  them,  like  the  jud^s  of 
other  courts,  they  are  exempted  from  liability  to  answer  elsewhere 
in  private  actions  for  their  official  orders,  decrees  and  judgments. 
Pratt  V.  Gardner,  2  Cush.  63.  But  they  have  always  been  held  re- 
sponsible to  individuals  in  civil  suits  for  all  the  injurious  conse- 
quences arising  from  every  illegal  act  they  may  have  done,  either 
in  the  adjudication  of  causes  of  which  they  had  no  jurisdiction,  or 
in  the  exercise  of  their  ministerial  powers,  or  in  the  discharge  of 
their  ministerial  duties.  Briggs  v.  Wardivcll,  10  Mass.  356.  Perci- 
val  V.  Jones,  2  Johns.  Cas.  49.  Spencer  v.  Perry,  17  Maine,  413. 
Clarke  v.  May,  ante,  410. 

When,  in  the  progress  of  a  suit,  a  final  judgment  has  been  ren- 
dered, there  can  remain  no  further  judicial  duty  to  be  performed. 
The  court  or  magistrate  has  then  no  longer  a  question  upon  which 
to  deliberate,  or  a  cause  between  contending  parties  to  decide.  Noth- 
ing is  left  to  be  done  but  to  carry  the  judgrnent  into  effect.  That, 
under  our  law,  is  accomplished  by  means  of  an  execution.  It  was 
early  determined  by  this  court  that  the  issuing  of  such  an  execution 
by  a  justice  of  the  peace  was  merely  a  ministerial  act;  and  in  a  par- 
ticular instance,  where  such  process  was  issued  erroneously,  the 
magistrate  was  held  responsible  in  damages  for  the  commitment  to 
prison  of  a  party  under  it.    Briggs  v.  IVardwell,  10  Mass.  356.^ 


^Accord:  Fairchild  V.  Keith,  29  Ohio  St.  156  (1876);  and  Larson  v. 
Kelly,  64  Minn.  51  (1896),  facts  similar  to  those  in  principal  case;  McLendon 
v.  American  Freehold  &c.  Co.,  119  Ala.  518  (1898),  false  certificate  of  the 
acknowledgment  of  a  deed;  Stone  v.  Graves,  8  Mo.  148  (1843).  In  Abranis 
V.  Carlisle,  18  S.  Car.  242  (1882)  ;  the  premature  entry  of  judgment  and  issu- 
ing of  execution  was  held  a  judicial  and  not  a  ministerial  act;  and  see  also 
Ward  v.  Freeman,  2  Jr.  C.  L.  460  (1852),  where  four  of  eight  judges  follow- 
ing Lin  ford  v.  Fitzroy,  13  A.  &  E.  (N.  S.)  240  (1849),  held  that  if  any  part 
of  the  duties  of  the  magistrate  was  judicial,  the  whole  must  be,  it  being  im- 
permissible to  split  up  and  divide  his  duty. 

Even  a  judge  of  a  superior  court  may  be  charged  with  the  performance 
of  purely  ministerial  duties,  and  is  liable  for  neglect  or  misperformance  of 
them,  Grider  v.  Tally,  77  Ala.  422  (1884),  refusal  to  issue  liquor  license. 

As  to  the  liability  of  a  judge  for  the  custody  of  money  paid  into 
court,  see  Disbrow  v.  Mills,  62  N.  Y.  604  (1875)  ;  State  v.  Faulkner,  31  Hun 
317  (N.  Y.  1884). 

"The  essential  and  characteristic  difference  between  a  judicial  and  minis- 
terial officer  is,  that  the  former  is  to  give  judgment,  which  requires  perfect 
freedom  of  opinion,  that  the  latter  is  to  execute,  which  supposes  obedience  to 
some  mandate  prescribing  what  is  to  be  done;  and  leaving  nothing  to  opin- 
ion."—Richardson,  J.  in  Reid  v.  Hood  &  Bur  dine,  2  Nott  &  McC.  168  (S.  Car. 
1819). 


Q72  GARIXd    Z'.    FKASER. 

SECTION  2. 
Immunity  of  Witnesses. 

GARING  v.  FRASER. 
Supreme  Judicial  Court  of  Maine,  1884.    76  Maine  37. 

Virgin,  J.  The  plaintiff  alleges  in  substance  that  the  defend- 
ants maliciously  conspired  to  falsely  accuse,  and,  by  means  of  false 
testimony,  to  procure  him  to  be  indicted  and  convicted  of  the  crime 
of  maintaining  a  nuisance;  that  by  false  and  perjured  testimony  the 
defendants  did  accuse  him  of  said  crime  before  the  grand  jury  who 
found  an  indictment  therefor  against  him ;  that  he  was  tried  on  said 
indictment,  and,  by  means  of  false  and  perjured  testimony  given  by 
them  at  the  trial,  the  jury  found  him  guilty  of  the  charge ;  that  the 
court  set  aside  the  verdict  because  of  said  false  and  perjured  testi- 
mony;  and  that  thereupon  the  county  attorney  entered  upon  the 
records  of  the  court  a  nolle  prosequi  to  said  indictment  with  allega- 
gations  of  damages. 

The  gist  of  the  action  is  not  the  conspiracy  alleged,  but  the  tort 
committed  by  the  defendants  and  the  damage  resulting  therefrom. 

The  acts  of  the  defendants  are  alleged  to  be  false  and  perjured 
testimony.  But  at  common  law  an  action  will  not  lie  against  one 
for  perjury.  Diinlap  v.  Glidden,  31  Maine,  435,  439;  Severance  v. 
Judkins,  73  ]\Iaine,  379 ;  Damport  v.  Sympson,  Cro.  Eliz.  520 ;  Eyres 


There  is  much  conflict  as  to  what  acts  of  a  magistrate  or  other  inferior 
judicial  officer  are  ministerial.  The  granting  of  an  appeal  is  held  to  be  a 
ministerial  act  in  Tyler  v.  Alford,  38  Maine  530  (1854),  though  demanding 
the  exercise  of  discretion  and  the  justice  is  liable  if  he  act  corruptly;  contra,- 
Jordan  v.  Hanson,  49  N.  H.  199  (1870),  while  in  Ward  v.  Freeman,  2  Ir.  C. 
L.  460  (1852),  a  judgment  for  defendant  in  an  action  against  an  "Assistant 
Barrister"  for  his  refusal  to  receive  an  appeal  was  affirmed  by  a  divided 
court;  and  see  Cunningham  v.  Dilliard.  4  Dev.  &  B.  351  (N.  Car.  1839).  In 
Legates  v.  Lingo,  8  Houst.  154  (Del.  1888),  and  Tompkins  v.  Sands,  8  Wend. 
462  (N.  Y.  1832),  a  refusal  to  approve  an  appeal  bond  was  held  a  ministerial 
act,  for  which,  if  done  from  a  corrupt  motive,  the  justice  was  liable j  contra, 
Rains  v.  Simpson,  50  Tex.  495  (1878).  an  approval  of  inadequate  sheriff's 
l)ond;  Howe  v.  Mason,  14  Iowa  510  (1863),  an  approval  of  replevin  bond  were 
held  judicial  acts.  So  in  Chichcring  v.  Robinson,  3  Cush.  543  (Mass.  1849), 
the  approval  of  an  invalid  recognizance  is  held  to  be  a  judicial  act.  In  Groli- 
mann  v.  Kirschman,  168  Pa.  St.  189  (1895),  and  Flack  v.  Harrington,  1  Breese 
165  (III.  1826),  justices  of  the  peace,  and  in  Gihbs  v.  Randlett,  58  N.  H.  407 
(1878).  a  sheriff,  refusing  to  admit  to  bail  or  to  receive  adequate  bail  offered, 
were  held  liable;  but  see  Evans  v.  Foster,  1  N.  H.  374  (1819),  hi  which  it  was 
intimated  that  a  justice  was  not  liable  for  demanding  excessive  bail.  As  to 
the  liability  of  a  justice  issuing  a  warrant  of  his  own  motion  or  without  the 
complaint  required  bv  law,  see  McCarthv  v.  De  Arniit,  99  Pa.  St.  63  (1881), 
and  Wallsworth  v.  McCullough.  10  Johns.  93  (X.  Y.  1813),  and  see  Banister 
v.  IVakeman,  64  Vt.  203  (1891).  a  justice  held  to  be  acting  ministerially  in 
issuing  a  mittimus  in  a  criminal  case.  ' 


GARING   V.    FRASER.  973 

V.  Sedgwicke,  Cro.  Jac.  6oi  ;  Phelps  v.  Stearns,  4  Gray,  106;  Rice 
V.  Coolidge,  121  Mass.  395,  and  cases  cited. 

But  it  is  said  that  the  Enghsh  Sts.  of  5  and  28  EHz.  provide  that 
a  party  grieved  by  a  judgment  obtained  by  the  perjury  of  witnesses 
might,  after  the  reversal  of  the  judgment,  "recover  his  damages 
against  every  such  person  as  did  procure  such  judgment  against  him, 
by  action  on  the  case."  Assuming,  however,  that  these  statutes  are 
in  force  here,  neither  of  them  can  be  seriously  contended  to  be  ap- 
plicable to  this  case.  To  be  sure,  it  is  a  general  rule  of  the  common 
law  and  it  has  been  substantially  engrafted  into  Art.  i,  §  19  of  our 
constitution,  that  a  man  shall  have  remedy  for  every  injury. 
3  Black.  Com.  123 ;  Ashby  v.  White,  i  Salk.  21.  But  the  law  has 
more  than  one  idea.  And  this  principle  however  sound  must  be  un- 
derstood with  such  qualifications  and  limitations  as  other  principles 
of  law  equally  sound  and  important  impose  upon  it.  Morton,  J., 
II  Pick.  532.  Thus  notwithstanding  the  rule  first  above  mentioned, 
words  spoken  in  the  course  of  judicial  proceedings,  though  they  im- 
pute crime  to  another,  and  therefore,  if  spoken  elsewhere,  would 
import  malice  and  be  actionable  in  themselves,  are  not  actionable  if 
applicable  and  pertinent  to  the  subject  of  inquiry.  Barnes  v.  Mc- 
Crate,  32  Maine,  442 ;  Hoar  v.  Wood,  3  Met.  193.  So  in  the  case 
at  bar,  while  the  law  declares  that  every  person  shall  have  a  remedy 
for  every  wrong,  public  policy  requires  that  witnesses  shall  not  be 
restrained  by  the  fear  of  being  vexed  by  actions  at  the  instance  of 
those  who  are  dissatisfied  with  their  testimony ;  but  if  they  perjure 
themselves  they  may  be  indicted  and  punished  therefor.  Barber  v. 
Lesiter,  7  C.  B.  (N.  S.)  (Erie,  J.)  186. 

Exceptions  overruled.^ 

^  While  the  judgment  against  the  plaintiff  stands  unreversed,  no  action 
is  allowed  against  either  the  adverse  party  whose  alleged  perjury  or  suborna- 
tion of  perjury  has  procured  such  judgment,  Phelps  v.  Stearns,  4  Gray  105 
(Mass.  1855)  ;  Curtis  v.  Fairbanks,  16  N.  H.  542  (1845)  ;  Severance  v.  Jtidkins. 
73  Maine  376  (1882)  ;  Damport  v.  Sympson,  Cro.  Eliz.  520  (1596)  ;  Eyres  v. 
Sedgwicke,  Cro.  Jac.  601  (1621)  ;  Bostwick  v.  Lewis,  2  Day  447  (Conn.  "1807)  ; 
Smith  v.  Lewis,  3  Johns.  157  (N.  Y.  1808);  or  against  a  witness.  Grcve  v. 
Brandenburg,  7  Blackf.  234  (Ind.  1844);  Cunningham  v.  Broivn,  18  Vt.  123 
(1846);  Dunlap  v.  Glidden,  31  Maine  435  (1850),  where,  however,  the  wit- 
nesses were  joined  as  defendants  with  the  successful  adversary,  and  see 
Taylor  v.  Bidwell,  65  Cal.  489  (1884),  since  this  involves  raising  the  same 
issues  already  decided,  for  the  purpose  of  collaterally  attacking  the  judgment, 
which  as  to  such  party  is  final  and  conclusive  until  reversed  upon  appeal  or 
set  aside  upon  motion  for  new  trial  or  other  direct  proceedings.  Where, 
however,  the  plaintiff  is  not  party  to  the  judgment  this  reason  does  not  ap- 
ply and  since  the  public  policy  which  gives  immunity  of  the  witness  does  not 
require  the  protection  of  one  suborning  his  perjury,  a  woman  whose  reputa- 
tion was  injured  by  a  verdict  in  a  divorce  case  finding  the  respondent  guilty 
of  adultery  with  her  was  held  in  Rice  v.  Coolidge,  121  Mass.  393  (1876),  en- 
titled to  maintain  an  action  against  the  parties  to  the  divorce  proceedings 
who  had  suborned  a  witness  to  falsely  testify  to  the  acts  of  adultery,  but  com- 
pare Tay/or  V.  Bedwell,  where,  however,  the  plaintiff  had  been  convicted  of  a 
criminal  offense  and  had  served  his  term  of  imprisonment  before  he  had  dis- 
covered the  alleged  perjury. 


974 


BURNS    Z'.    ERUEN. 


SECTION  3. 


The  Right  to  Arrest  With  or  Without  Warrant  or  to  Seize  Prop- 
erty Under  Judicial  Process. 


(a)  Arrest  without  warrant. 

BURNS  V.  ERBEN. 
Court  of  Appeals  of  New  York,  1869.    40  N.  Y.  463. 

Woodruff,  J.  By  section  8  of  the  act  to  establish  a  Metropoli- 
tan Police  District,  passed  April  15th,  1857  (chap.  569  of  Laws  of 
1857),  the  members  of  the  police  force  of  that  district  are  given  "in 
every  part  of  the  state  of  New  York,  all  the  common  law  and  statu- 
tory powers  of  constables,  except  for  the  service  of  civil  process." 
And  in  the  amendatory  act  passed  April  10,  i860  (chap.  259  of 
Laws  of  i860),  it  is  declared  in  the  28th  section,  that  the  members 
of  the  police  force  of  that  district  "shall  possess  in  every  part  of  the 
state  all  the  common  law  and  statutory  powers  of  constables,  except 
for  the  service  of  civil  process." 

In  pursuance  of  information  given  by  the  defendant,  Erben, 
the  defendant,  Frost,  accompanied  by  Erben,  arrested  the  plaintiff 
without  a  warrant,  took  her  to  the  police  station,  where  she  was 
detained  a  few  minutes,  and  after  some  conversation  with  the  officer 
in  charge,  she  was  permitted  to  return  to  her  residence.  For  this 
she  has  brought  the  present  action  for  false  imprisonment. 

A  felony  had  been  committed  that  evening,  at  the  house  of  Mr. 
Henry  Erben,  the  defendant's  father.  On  that  point  there  is  no 
dispute  or  conflict.  The  plaintiff  had  visited  the  house  that  evening, 
and,  according  to  the  information  upon  which  the  defendant  acted, 
was  the  only  person  not  a  member  of  the  family,  who  had  been  in 
the  basement.  Silver  had  been  stolen  from  the  basement.  It  was 
there  when  the  plaintiff  entered  and  until  after  8  o'clock ;  and  it  was 
missed  very  shortly  after  she  left  the  house.  Of  these  facts  the 
proof  was  distinct  and  without  contradiction. 

L^pon  a  report  of  these  facts.  Frost,  accompanied  by  the  de- 
fendant, Erben,  made  the  arrest  as  above  stated. 

The  inquiry  is,  therefore,  whether  under  the  statutes  above 
cited  and  the  common  law  rule  in  respect  of  arrests  made  or  aided 
by  private  persons,  the  plaintiff'  was  entitled  to  recover.  There  were 
no  facts  in  dispute  requiring  the  submission  of  any  question  to  the 
jury,  unless  it  be  held  that  there  was  no  justificatior^.- 

I  have  no  doubt  upon  the  subject.  The  writers  upon  criminal 
law  and  the  reported  cases,  so  far  as  I  have  examined  them,  hold 
uniform  language. 


BURNS   V.    ERBEN.  975 

Lord  Tenterden,  Ch.  J.,  in  Beckzvifh  v.  Philby  (6  Barn.  &  Cres., 
635),  says:  "The  only  question  of  law  in  this  case  is,  whether  a 
constable,  having  a  reasonable  cause  to  suspect  that  a  person  has 
committed  a  felony,  may  detain  such  person  until  he  can  be  brought 
before  a  justice  of  the  peace  to  have  his  conduct  investigated.  There 
is  this  distinction  between  a  private  individual  and  a  constable :  in 
order  to  justify  the  former  in  causing  the  imprisonment  of  a  per- 
son, he  must  not  only  make  out  a  reasonable  ground  of  suspicion, 
but  he  must  prove  that  a  felony  has  actually  been  committed ; 
whereas  a  constable  having  reasonable  ground  to  suspect  that  a  fel- 
ony has  been  committed,  is  authorized  to  detain  the  party  suspected 
until  inquiry  can  be  made  by  the  proper  authorities."  (See  Hawk 
P.  C,  book  2,  chap.  12,  13;  i  Russell  on  Crime,  594,  5;  Steph.  Cr. 
L.,  242,  3;  I  Chit.  Cr.  L.,  15,  17;  Samuel  v.  Payne,  Doug.,  358; 
Lazvrence  v.  Hedger,  3  Taunt.,  14 ;  Regina  v.  TooJiy,  2  Ld.  Ray- 
mond, 130;  Hobbs  V.  Brandscomb,  3  Camp.,  420;  Davis  v.  Russell, 
5  Bing.,  354;  Cozdes  v.  Dunbar,  2  Car.  and  P.,  565.) 

In  Ledzvith  v.  Catchpole  ( Cald.  Cas.,  291,  and  ist  Burns,  Jus- 
tice, p.  130,  i).  Lord  Mansfield  says,  in  an  action  against  the  officer: 
"The  question  is,  whether  a  felony  has  been  committed  or  not.  And 
then  the  fundamental  distinction  is,  that  if  a  felony  has  actually 
been  committed,  a  private  person  may,  as  well  as  a  police  officer, 
arrest ;  if  not,  the  question  always  turns  upon  this,  was  the  arrest 
bona  Udef  Was  the  act  done  fairly  and  in  pursuit  of  an  officer,  or 
by  design,  or  malice,  or  ill  will  ?  *  *  *  It  would  be  a  terrible  thing, 
if,  under  probable  cause,  an  arrest  could  not  be  made  *  '''  *  ; 
many  an  innocent  man  has  and  may  be  taken  up  upon  suspicion ;  but 
the  mischief  and  inconvenience  to  the  public  in  this  point  of  view, 
is  comparatively  nothing ;  it  is  of  great  consequence  to  the  police  of 
the  country."^ 

The  justification  of  an  arrest  by  a  private  person  was  made  in 
Allen  V.  Wright  (8  Carr  and  Payne,  522),  to  depend  on  first,  the 
fact  that  a  felony  had  been  actually  committed  ;  and  second,  that  the 
circumstances  were  such  that  a  reasonable  person,  acting  without 
passion  and  prejudice,  would  have  fairly  suspected  the  plaintiff  of 
being  the  person  who  did  it.^ 


^  In  Wakely  v.  Hart,  6  Binney  316  (Pa.  1814),  it  was  unsuccessfully  con- 
tended that  the  provision  in  the  constitution  of  Pennsylvania,  common  to  all 
state  constitutions,  declaring  that  all  persons  shall  be  secure  against  unrea- 
sonable searches  and  seizures  and  providing  that  no  warrants  shall  issue  with- 
out describing  the  person  or  property  "as  nearly  as  may  be  nor  without  prob- 
able cause  supported  by  oath",  had  made  illegal  the  arrest  without  warrant  of 
a  person  even  if  actually  guilty  of  itiony;  accord:  Rohan\.Sawin,S  Cush.  281 
(Mass.  1850),  arrest  by  constable  on  reasonable  suspicion,  Dewey,  J.  saying 
that  such  provisions  do  not  "conflict  with  the  authority  of  constables  or  other 
peace  officers  or  private  persons  under  proper  limitations  to  arrest  without 
warrant  those  who  have  committed  (or,  if  the  arrest  is  by  a  constable,  are 
reasonably  suspected  to  have  committed)  felonies.  The  public  safety  and  the 
due  apprehension  of  criminals  charged  with  heinous  offences,  imperiously  re- 
quire that  such  arrests  should  be  made  without  warrant  by  officers  of  the 
law";  see  also,  McCarthy  v.  De  Armit.  99  Pa.  St.  6Z  (1881). 

^Accord:  Long  v.  State,  12  Ga.  293  (1852)  ;  Gamier  v.  Squires,  62  Kans. 
321  (1900)  ;  Maliniemi  v.  Gronluiid,  92  Mich.  222  (1892)  ;  Spencer  v.  Anness, 


976 


BURNS   V.    ERBEN. 


These  principles  are  affirmed  in  this  State  in  Mix  V.  Clute  (3 
Wend.,  350),  in  very  distinct  terms.  "If  a  felony  has  been  com- 
mitted by  the  person  arrested,  the  arrest  may  be  justified  by  any  per- 
son without  a  warrant.^  If  an  innocent  person  is  arrested  upon  sus- 
picion by  a  private  individual,  such  individual  is  excused  if  a  felony 
was  in  fact  committed,  and  there  was  reasonable  ground  to  suspect 
the  person  arrested.  But  if  no  felony  was  committed  by  any  one,  and 
a  private  individual  arrest  without  warrant,  such  arrest  is  illegal,'* 
though  an  officer  would  be  justified  if  he  acted  upon  information 
from  another  which  he  had  reason  to  believe."* 


32  N.  J.  L.  100  (1866)  ;  Reuck  v.  McGregor.  32  N.  J.  L.  70  (1866)  ;  McCarthy 
V.  De  Armit,  99  Pa.  St.  63  (1881),  seinble:  Brooks  v.  Commonzvcalth,  61  Pa. 
352  (1869),  semble;  but  see  Grinnell  v.  Weston,  95  App.  Div.  454  (N.  Y.  1904)  ; 
Brockway  v.  Crawford,  48  N.  Car.  433  (1856).  The  plea  should  set  forth 
the  grounds  for  the  defendant's  suspicion  of  the  plaintiff's  guilt,  Mure  v. 
Kaye,  4  Taunt.  34  (1811);  Spencer  v.  Anncss,  2,2  N.  J.  L.  100  (1866)  and 
Edger  v.  Burke,  96  Md.  715  (1903),  and  the  question  as  to  whether  the  de- 
fendant, whether  private  person  or  officer,  had  reason  to  suspect  the  plain- 
tiff, is  a  question  for  the  decision  of  the  court,  Howard  v.  Clarke,  L.  R.  20  Q. 
B.  Div.  558  (1888)  ;  Spencer  v.  Anness,  32  N.  J.  L.  100  (1866)  ;  McCarthy  v. 
De  Armit,  99  Pa.  St.  63  (.1881)  ;  but  see  Grinnell  v.  Weston,  95  App.  Div. 
454  (N.  Y.  1904)  :  Cochran  v.  Toher,  14  Minn.  385  (1869),  and  Rohan  v. 
Sawin,  5  Cush.  28=   (Mass.  1849). 

In  Dodds  v.  Board,  43  111.  95  (1867),  Kindred  v.  Stitt,  51  111.  401  (1869). 
and  Rohan  v.  Sawin,  5  Cush.  281  (Mass.  1849),  it  is  held  that  a  private  per- 
son can  only  justify  by  showing  the  actual  guilt  of  the  person  arrested;  see 
also  Lander  v.  Miles,  3  Ore.  35  (1868)  ;  see  Gold  v.  Armer,  140  App.  Div.  IZ 
(N.  Y.  1910),  p.  75. 

'  Wakely  v.  Hart,  and  Rohan  v.  Sawin,  5  Cush.  281  (Mass.  1849),  Note  1; 
Wrexjord  v.  Smith,  2  Root  171  (Conn,  1795).  So  a  private  person  may  ar- 
rest a  felon  who  has  escaped  from  a  prison  in  the  state  in  which  the  arrest 
occurs.  State  v.  Holmes,  48  N.  H.  ill  (1869),  but  not  a  fugitive  from  justice 
from  another  jurisdiction,  Botts  v.  Williams,  17  B.  Mon.  687  (Ky.  1856)  ; 
Wells  V.  Johnston,  52  La.  Ann.  713  (1900)  ;  but  see  Cochran  v.  Tohcr,  14 
Minn.  385  (1869). 

*  Doughty  v.  State,  2)Z  Tex.  1  (1870),  and  see  dicta  in  many  of  the  cases 
cited  in  Note  2. 

^Accord:  Samuel  v.  Payne,  1  Douglas  359  (1780),  Lord  Mansfield  say- 
ing "it  would  be  most  mischievous  that  the  officer  should  be  bound,"  (before 
making  the  arrest),  "first  to  try,  and  at  his  peril  exercise  his  judgment  on 
the  truth  of  the  charge";  Hobbs  v.  Branscomb,  3  Camp.  420  (1813)  ;  Hogg  v. 
Ward,  3  ]{.  &  N.  417  (1858)  ;  Johnson  v.  State,  30  Ga.  426  (1860)  ;  Dodds  v. 
Board,  43  111.  95  (1867),  semble;  Doering  v.  State,  49  Ind.  56  (1874)  ;  Cor- 
nier V.  Squires,  62  Kans.  321  (1900)  ;  Werner  v.  Commonwealth,  80  Ky.  387 
(1882)  ;  Cochran  v.  Toher,  14  Minn.  385  (1869)  ;  Filer  v.  Smith,  96  Mich.  347 
(1893)  ;  Neal  v.  Joyner,  89  N.  Car.  287  (1883)  ;  McCarthv  v.  De  Armit.  99 
Pa.  St.  63  (1881)  ;  Eanes  v.  Stat'e,  6  Humph.  53  (Tenn.  1845)  ;  Burke  v.  Bell, 
36  Maine  317  (1853)  ;  Edger  v.  Burke,  96  Md.  715  (1903)  ;  Rohan  v.  Sawin. 
5  Cush.  281  (Mass.  1849).  In  such  case  the  person  making  the  charge  is 
answerable,  the  officer  is  not  liable,  Samuel  v.  Payne,  1  Douglass  359  (1780), 
and  Holly  v.  Mix. 

A  peace  officer  enjoys  equal  immunity  where  he  acts  on  his  own  motion, 
having  from  his  own  knowledge  reasonable  grounds  to  suspect  that  a  felony 
has  been  committed,  Beckwith  v.  Phclby,  cited  in  the  principal  case;  Johnson 
V.  Collins,  28  Ky.  L.  375  (1905);  Brish  v.  Carter,  98  Md.  445  (1904);  Mc- 
Carthv V.  De  Armit,  99  Pa.  St.  6Z  (1881)  ;  Brockivay  v.  Crawford, ,3  Jones 
(Law)  433  (N.  Car.  1856). 

The  fact  that  the  warrant  has  been  issued  is  sufficient  grounds  for  sus- 
picion, Filer  v.  Smith,  96  Mich.  347  (1893)  ;  Creagh  v.  Gamble,  24  L.  R.  Ir. 


STATE    t'.    LEWIS.  977 

The  fact  being  proved  in  this  case  that  a  felony  had  in  fact  been 
committed,  I  have  no  hesitation  in  saying  that,  however  unfortunate 
it  was  to  the  plaintiff,  the  circumstances  fully  justified  the  sus- 
picion which  led  to  her  arrest.  It  is  claimed  that  these  circumstances 
should  have  been  submitted  to  the  jury.  Not  so ;  a  verdict  finding 
no  reasonable  ground  of  suspicion  would  have  been  against  evi- 
dence. There  was  no  conflict  of  testimony,  and  that  the  arrest  was 
made  without  malice,  in  good  faith,  and  upon  reasonable  grounds, 
is  to  my  mind  incontrovertible. 

The  appeal  appears  to  me  to  have  been  taken  upon  a  misappre- 
hension of  the  construction  and  effect  of  the  statutes  conferring 
power  on  the  policeman.  I  think  the  power  perfectly  clear,  and  I 
notice  that  the  rules  and  regulations  of  the  board  of  police  are  in 
conformity  therewith ;  and  it  is  made  the  duty  of  the  officer  to  take 
the  arrested  person  immediately  before  the  Police  Court,  or  if  made 
at  night  or  when  the  courts  are  not  open,  immediately  to  the  station 
house,  where  the  ofiicer  on  duty  is  required  to  examine  whether 
there  is  reasonable  ground  for  the  complaint,  and  if  so,  to  cause  the 
party  to  be  taken  before  the  court  the  next  morning.  Under  such 
a  system,  innocent  parties  may  sometimes  be  subjected  to  inconve- 
nience and  mortification  ;  but  any  more  lax  rules  would  be  greatly 
dangerous  to  the  peace  of  the  community  and  make  the  escape  of 
criminals  frequent  and  easy. 

The  judgment  should  be  afiirmed. 

All  the  judges  concurring,  judgment  affirmed.^ 


(1  STATE  t;.  LEWIS. 

Supreme  Court  of  Ohio,  1893.     50  Ohio  St.  179. 

Bradbury,  C.  J.  The  defendant  was  indicted  for  murder  in 
the  second  degree  for  causing  the  death  of  one  Edward  Elliott,  in 
the  course  of  an  attempt  to  arrest  the  latter  for  the  commission  of 
a  misdemeanor.  The  defendant  was  marshal  of  the  village  of 
Hillsboro,  in  Highland  county,  and  being  put  upon  trial  for  the 
homicide,  it  became  material  to  inquire  into  the  authority  of  such 
officers  to  make  arrests  without  a  written  warrant  therefor. 

That  the  defendant  was  marshal  of  the  village  of  Hillsboro ; 


458  (1888).  But  the  officer  is  bound  to  know  the  law,  he  is  not  excused  if 
he  erroneously  supposed  that  certain  acts  cornmitted,  or  reasonably  believed 
to  have  been  committed,  by  the  plaintiiT  constituted  a  felony,  Malcolmson  v. 
Scott,  56  Mich.  459  (1885).  In  Sugg  v.  Pool  2  Stew.  &  P.  196  (Ala.  1832), 
Vice  V.  Holly,  88  Miss.  572  (1906),  cf.  Formwalt  v.  Hylton,  66  Tex.  288  (1886), 
it  is  held,  relying  on  cases  holding  that  an  officer  arresting  on  a  warrant  must 
at  his  peril  arrest  the  person  named  therein,  that  a  mistake  in  identity  is  at 
the  officer's  peril ;  contra^  Edger  v.  Burke,  Brockway  v.  Crawford,  Filer  v 
6"»n7/j.  96  Mich.  347  (1893). 

*The  right  of  arrest  without  warrant  is  not  affected  by  the  fact  that 
there  was  time  to  obtain  a  warrant,  Davis  v.  Russell,  5  Bing  354  (1829)  • 
Holley  V.  Mix,  3  Wend.  350  (N.  Y.  1829)  ;  Rohan  v.  Sazcin,  5  Cush  ^81 
(Mass.  1849). 


Q78  STATE   t'.    LEWIS. 

did  not  witness  the  affray  nor  procure  from  a  magistrate  a  warrant 
for  the  arrest  of  the  deceased,  are  conceded  facts.  In  addition  to 
this  the  testimony  given  in  behalf  of  the  state  tended  to  prove  that 
the  deceased  had  participated  in  an  affray  in  a  saloon  within  the 
village  of  Hillsboro,  on  the  day  of  the  homicide ;  that  the  defendant 
was  absent  and  did  not  hear  or  see  any  part  of  the  affray ;  that  a 
few  minutes  thereafter  he  received  information  that  a  breach  of  the 
peace  had  been  committed,  and  at  once  went  to  the  saloon  where  it 
had  occurred ;  that  when  he  reached  the  saloon,  the  parties  to  it  had 
gone  and  good  order  had  been  restored ;  that  upon  inquiry  the  de- 
fendant was  told  that  an  affray  had  been  committed,  m  which  the 
deceased  had  participated,  and  ascertaining  the  direction  taken  by 
the  deceased,  the  defendant,  without  obtaining  a  warrant,  irnmedi- 
ately  pursued,  soon  after  overtook  and  proceeded  to  arrest  him  for 
that  offense;  that  the  deceased,  though  having  knowledge  of  the 
official  character  of  the  defendant,  resisted  the  arrest,  and  in  the 
resulting  struggle  was  shot  and  killed  by  the  defendant. 

The  authority  of  peace  ofificers  to  arrest  without  a  warrant  from 
a  magistrate  is  a  subject  that  has  received  the  attention  of  the  courts 
and  text-writers  from  an  early  period  in  the  history  and  develop- 
ment of  the  common  law  in  both  England  and  America.  Some  of 
the  earlier  English  authorities,  while  the  prerogatives  of  the  govern- 
ment were  more  highly  considered  than  at  a  later  day,  maintained 
the  power.  (2  Hale  P.  C.  90.)  But  even  then  the  doctrine  met 
with  a  resistance  which  finally  overturned  it.  (l  East  P.  €.305.) 
Regina  v.  Tooley,  2  Lord  Raymond,  1301,  where  Lord  Holt,  in  de- 
livering the  opinion  of  the  majority  of  the  court,  is  reported  as  sav- 
ing: "The  prisoners  in  this  case  had  sufficient  provocation;  for  if 
one  be  imprisoned  upon  an  unlawful  authority,  it  is  a  sufficient 
provocation  to  all  people  out  of  compassion ;  much  more  where  it  is 
done  under  a  color  of  justice,  and  where  the  liberty  of  the  subject 
is  invaded,  it  is  a  provocation  to  all  the  subjects  of  England.  He 
said,  that  a  constable  cannot  arrest,  but  when  he  sees  an  actual 
breach  of  the  peace,^  and  if  the  affray  be  over,  he  cannot  arrest." 
See  also  2  Hawk.  Crim.  Law,  13,  Sec.  8.    The  later  English  authori- 


^The  right  of  a  constable  or  other  peace  officer  to  immediately  arrest  for 
breach  of  the  peace  committed  in  his  presence  is  universally  recognized. 
Anon.  Y.  B.  7  Henry  VII  6  pi.  12  (1480)  ;  United  States  v.  Hart.  Peters  390 
(U.  S.  1817);  Vandeveer  v.  Mattocks,  3  Ind.  479  (1852);  Hutchinson  v. 
Songster,  4  G.  Greene  340  (Iowa  1854)  ;  Taaffe  v.  Kyne,  9  AIo.  App.  15 
(1880)  ;  Commonzvcalth  v.  Deacon,  8  S.  &  R.  47  (Pa.  1822)  ;  Perry  v.  Pa.  R. 
Co  41  Pa.  S.  C.  591  (1910)  ;  Taylor  v.  Strong.  3  Wend.  384  (X.  Y.  1829)  ; 
State  V.  Bowen,  17  S.  Car.  58  (1881)  ;  Ross  v.  State,  10  Tex.  App.  455  (1881)  ; 
Main  V.  McCarty,  15  111.  441  (1854).  At  common  law  the  right  of  a  peace 
officer  to  arrest  without  warrant  upon  view  of  offenses  less  than  felony,  was 
confined  to  breaches  of  the  peace  and  offenses  punishable  in  a  summary  man- 
ner. Clerk  and  Lindsell  on  Torts,  6th  ed.  350;  Park  v.  Taylor,  118  Fed.  34 
(1902);  Commomvealth  v.  Wright,  158  Mass.  149  (1893);  Way's  Case,  41 
Mich.  299  (1879)  ;  Donovan  v.  Jones,  36  N.  H.  246  (1858)  ;  Booth  v.  Hanley, 
2  C.  &  P.  288  (1826),  arrest  of  one  committing  a  nuisance,  see  Mum  ford  v. 
Starmont,  139  Mich.  188  (1905),  Schnider  v.  Montross,  158  Mich,  263  (1909), 
and  Moore  v.  Durgin,  68  Maine  148  (1878)  j  contra,  State  v.  McNalJy,  87  Mo. 
644    (1885),   [holding  also  that  killing  to  effect  arrest  is  justifiable,  as  to 


STATE   v.    LEWIS.  979 

ties  seem  to  settle  the  law  there  in  accordance  with  the  views  of 
Lord  Holt,  Coupey  v.  Henley  et  al.,  2  Esp.  540;  Bayncs  v.  Brew- 
ster, 2  A.  &  E.  (N.  S.)  375  ;  Regina  v.  Mahle,  9  C.  &  P.  474;  Tim- 
othy V.  Simpson,  i  C.  M.  &  R.  757;  Grant  w  Moser,  5  Mann  &  G. 
123;  I  Russ.  on  Cri.  (8th  ed.)  410,  805.  In  the  case  of  Cook  v. 
Nethercote,  6  C.  &  P.  741,  Alderson,  B.,  in  summing  up  says:  "If, 
however,  there  has  been  an  affray,  and  that  affray  were  over,  then 
the  constable  had  not  and  ought  not  to  have  the  power  of  appre- 
hending the  persons  engaged  in  it ;  for  the  power  is  given  him  by 
law  to  prevent  a  breach  of  the  peace;  and  where  a  breach  of  the 
peace  had  been  committed,  and  was  over,  the  constable  must  pro- 
ceed in  the  same  way  as  any  other  person,  namely,  by  obtaining  a 
warrant  from  a  magistrate."    Id.  744. 

The  American  authorities  establish  the  same  rule.  Roberts  v. 
The  State,  14  j\Io.  138;  The  People  v.  James  Haley,  48  Mich.  495; 
Phillips  V.  Triill,  11  John.  486;  Pow  v.  Beckncr  ei  al.,  3  Ind,  475; 
I  Bishop  on  Cr.  Procedure,  183,  184;  Quinn  v.  Heisel,  40  Mich.  576; 
In  re  Sarah  Way,  41  Mich.  299;  Commonwealth  v.  Carey,  12  Cush. 
246.^ 

This  court  has  held  that  city  council  may  lawfully  authorize 
police  officers  to  arrest  upon  view  any  person  found  in  the  act  of 
violating  the  ordinances  of  the  city,  made  for  the  preservation  of 
good  order  and  public  convenience.  White  v.  Kent,  11  Ohio  St. 
550.  Also  that  the  officer  in  making  arrest  upon  view  is  not  bound 
to  disclose  his  official  character.  IVolf  v.  State,  19  Ohio  St.  248. 
And  that  it  is  lawful  to  arrest,  without  warrant,  one  who  is  unlaw- 
fully carrying  a  concealed  weapon,  though  the  officer  had  no  previ- 
ous knowledge  of  the  fact  if  he  acted  bona  fide  upon  knowledge 
which  induced  an  honest  belief  that  the  person  was  violating  the 
law  in  this  respect.  Ballard  v.  State,  43  Ohio  St.  340.  But  the 
facts  in  those  cases  disclose  that  the  person  arrested  was  taken  while 
in  the  act  of  committing  the  offense  for  which  he  was  apprehended, 
while  in  the  case  under  consideration  the  evidence  tended  to  show 
that  the  defendant  acted  upon  information  only,  and  that  the  affray 
was  over,  and  public  order  restored  before  he  attempted  to  pursue 
or  arrest  the  supposed  offender. 


which  see  Titter  v.  State,  44  Tex.  128  (1875)] ;  IVebb  v.  State,  51  N.  J.  L  189 
(1889),  semble,  Percival  v.  Bailev,  70  S.  Car.  72  (1904),  and  Baltimore  & 
Ohio  R.  Co.  V.  Cain,  81  Md.  87  (1895). 

'Accord:  Kurtz  v.  Moffitt,  115  U.  S.  487  (1885),  arrest  of  deserter  from 
the  United  States  army;  Sharrock  v.  Hannemcr,  Cro.  Eliz.  375  (1595); 
Cohen  v.  Huskisson,  2  M.  &  W.  477  (1837)  ;  Ross  v.  Leggett,  61  Mich.  445 
(1886)  ;  People  v.  McLean,  68  Mich.  480  (1888)  ;  Percival  v.  Bailex,  70  S.  Car 
72  (1904)  ;  Thome  v.  Turck,  94  N.  Y.  90  (1883),  and  Fox  v.  Gaun},  2  B.  k  Ad. 
798  (1832),  both  cases  of  arrest  for  obtaining  money  under  false  pretenses; 
Pinkerton  v.  Vcrberg,  78  Mich.  573  (1889),  and  State  ex  ret.  Kingsley  v. 
Pratt,  22  Hun  300  (N.  Y.  1880),  women  arrested  as  "street-walkers";  but 
see  Smith  v.  Donelly,  66  111.  464  (1873),  where  an  owner  of  a  horse  and  wagon 
which  had  been  untied,  unlawfully  taken  and  drawn  off  bv  mischievous  boys, 
was  held  justified  in  arresting  them  while  still  driving  the  horse,  though  the 
taking  was  not  a  felony  but  a  high  misdemeanor;  and  see  State  v.  Dietz  59 
Kans.  576  (1898). 


98o 


BALTIMORE    &C.    R.    CO.    Z'.    CAIX. 


BALTIMORE  &  OHIO  R.  CO.  v.  CAIN. 


Court  of  Appeals  of  Maryland,  1895.    81  Md.  87. 

McSiiERRY,  J.,  delivered  the  opinion  of  the  Court. 

During  the  progress  of  the  trial,  which  resulted  in  a  verdict  and 
judgment  forthejilaiDtiff,  four  exceptions  were  reserved  and  the 
defendanFtheiTtook  the  pending  appeal. 

The  plaihtiflf  with  three  companions,  including  one  by  the  name 
of  Watkins,  were  passengers  on  the  defendant's  train  going  to 
Washington,  D.  C.  They  entered  the  ladies'  car,  and  while,  the 
evidence  was  conflicting,  the  testimony  for  the  defendant  was  to  the 
effect  that  they  were  intoxicated  and  behaved  in  a  disgraceful, 
shocking  and  disorderly  manner,  using  profane  language  so  obscene 
as  to  drive  the  female  passengers  from  the  car.  Many  of  the  other 
passengers  complained  fo^tiie  conductor,  who  feeling  himself  unable 
to  cope  with  them  and  personally  eject  them,  telegraphed  to  Wash- 
ington for  an  officer  to  arrest  them.  \\'hen  the  train  reached  Wash- 
ington the  policeman  was  there,  and  the^nductor  pointing  out  the 
plaintiff,  arrested  him.  and  took  him  to  thestation  house,  where  the 
conductor  appearing  against  him  he  was  fined  five  dollars.^ 

With  these  facts  before  the  jury,  there  were  two  prayers  pre- 
sented by  the  plaintiff,  both  of  which  were  granted ;  and  there  were 
nine  presented  by  the  defendant,  all  of  which,  except  the  sixth,  were 
rejected.  The  view  we  take  of  the  case  dispenses  with  a  separate 
consideration  of  each  of  these  prayers,  inasmuch  as  the  defendant's 
fifth  prayer  raises  the  crucial  inquiry  contained  in  the  record ;  and 
what  we  shall  say  in  discussing  the  prayer  will,  with  a  few  brief 
additional  observations,  dispose  of  most,  if  not  all,  of  the  others. 
The  fifth  prayer  maintains  that  if  the  plaintiff  was  riotous  and  dis- 
orderly the  conductor  had  the  right  to  eject  him;  that  if  the  con- 
ductor was  unable  to  do  this  by  reason  of  the  threat  of  resistance, 
then  the  conductor  was  justified  in  requesting  the  first  police  officer 
whom  he  could  find  to  arrest  the  plaintiff;  and  it  proceeds,  "if  the 
jury  further  find,  that  the  police  officer  at  the  Washington  depot 
was  the  first  police  officer  the  conductor  saw,  and  that  the  conductor 
used  due  diligence  in  procuring  a  police  officer,  and  that  the  con- 
ductor directed  the  police  officer  to  arrest  the  plaintiff  for  said  dis- 
orderly conduct,  that  the  defendant  is  not  liable  for  this  arrest,  and 
the  verdict  of  the  jury  must  be  for  the  defendant."  From  this 
prayer,  considered  in  connection  with  the  evidence  to  which  allusion 
has  been  made,  it  is  obvious  at  a  glance  that  the  predominant  and 
controlling  question  before  us  involves  the  legality  of  the  conceded 
arrest  made  in  the  city  of  Washington.  Under  the  undisputed  proof 
that  arrest  was  made  without  a  warrant  having  been  first  procured. 

It  was  not  made  for  an  alleged  felony,  nor  for  a  misdemeanor 
or  breach  of  the  peace  committed  within  view  of  the  officer  who  took 


^  The  statement  of  facts  Is  condensed  from  those  given  in  the  opinion  of 
the  Court. 


BALTIMORE   &C.    R.    CO.    V.    CAIN.  981 

the  plaintiff  into  custody ;  but,  if  the  evidence  of  the  defendant's 
witnesses  be  credited,  it  was  made  for  a  flagrant  breach  of  the  peace, 
which  began  at  Washington  Grove  and  continued  into  Washington 
City,  on  the  moving  train  of  the  defendant,  and  was  made  at  the 
instance  of  the  conductor  the  very  moment  he  reached  a  place  where 
he  could  deliver  these  intoxicated  offenders  into  the  custody  of  a 
police  officer.    Was  the  arrest  so  made  illegal? 

It  is  settled  that  an  officer  has  the  right  to  arrest  without  a  war- 
rant for  any  crime  committed  withinJiia-j^lew.     It  was  his  duty  to 
do  so  at  the  common  law,  and  this  is  still  the  law.    Roddy  v.  Finne- 
gan,  43  Mo.  504;  Phillips  v.  Trull,  11  Johns.  486;  Derecourt  v.  Cor- 
bishlv,  5  El.  &  Bl.  188  ;2  and  in  cases  of  felony  he  may  arrest  upon 
information,  without  warrant,  where  he  has  reasonable  cause.    Rex 
V.  Birnie,  i  j\Ioody  &  R.  160;  Rohan  v.  Sazvin,  5  Cush.  281.     And 
so  any  person,  though  not  an  officer,  in  whose  view  a  felony  is  com- 
mitted, may  arrest  the  offender.     Ruloff  v.  People,  45  N.  Y.  213. 
But  the  right  of  a  person  not  an  officer  to  make  an  arrest  is  not 
confined  to  cases  of  felony,  for  he  may  take  into  custody,  without  a 
warrant,  one  who  in  his  presence  is  guilty  of  an  affray  or  a  breach 
ofjhe_peace^.  Knot  v.  Gay,  1  Root,  66.    "It  seems  agreed  that  any 
one  who  sees  others  fighting  may  law f ully_paTtjbhem^.and--alsa-stay- — • 
them  till  the  heat  bV^'^^er,  and'tTien  deliver  them  to  the  constable, 
who  may  carry  them  b_efQre^ a.  justice  of  the  peace^  in  order  to  their 
finding  sureties  for  the  peace."^     i  Rus.  on  Crimes,  272 ;  i  Arch. 
Crim,  Prac.  &  PI.  82;  i  Haw.  P.  C,  ch.  63,  sec.  ii  and  17;  2  Hale 
P.  C,  90;  East  P.  C,  306;  Timothy  v.  Simpson,  1  C.  M.  &  R.  757. 
The  case  last  cited  was  one  of  trespass  for  assault  and  false  impris- 
onment and  taking  the  plaintiff  to  a  police  station.     Plea,  that  the 
defendant  was  possessed  of  a  dwelling  house  and  the  plaintiff  en- 
tered the  same  and  then  and  there  insulted,  abused  and  ill-treated 
the  defendant  and  his  servants,  and  greatly  disturbed  them  in  the 
peaceable  enjoyment  thereof  in  breach  of  the  peace,  whereupon  the 
defendant  requested  the  plaintiff  to  cease  his  disturbance  and  to 
depart  from  and  out  of  the  house,  which  the  plaintiff  refused  to  do ; 
and  thereupon  the  defendant,  in  order  to  preserve  the  peace  and 
restore  good  order  in  the  house,  gave  charge  of  the  plaintiff  to  a  po- 
liceman, and  requested  the  policeman  to  take  the  plaintiff  into  his 
custody  to  be  dealt  with  according  to  law,  and  the  policeman  gently 
laid  his  hands  on  the  plaintiff  and  took  him  into  custody.     It  ap- 
peared in  evidence  that  the  plaintiff  entered  the  defendant's  shop 
to  purchase  an  article,  when  a  dispute  arose  between  the  plaintiff 
and  the  defendant's  shopman ;  that  plaintiff  refused  on  request  to  go 
out  of  the  shop ;  the  shopman  endeavored  to  turn  him  out  and  an 
affray  ensued  between  them  ;  that  the  defendant  came  into  the  shop 
during  the  affray,  which  continued  for  a  short  time  after  he  came 

^  But  see  Note  1  to  State  v.  Lewis,  ante,  p.  977. 

^A  witness  to  any  breach  of  the  peace  may  summon  the  police  and  give 
the  offender  unto  custody,  Inc/le  v.  Bell,  1  M.  &  W.  516  (1836)  ;  Cohen  v. 
Huskissoii,  2  M.  &  W.  477  (1837).  So  when  the  constable  though  present 
fails  to  act,  a  bystander  may  call  on  him  to  do  his  duty  and  make  the  arrest,' 
Derecourt  v.  Corbishlcy,  5  E.  &  B.  188  (1855). 


982  BALTIMORE    &C.    R.    CO.    Z'.    CAIN. 

in  ;  that  the  defendant  then  requested  the  plaintiff  to  leave  the  shop 
quietly ;  but  he  refusing  to  do  so,  the  defendant  gave  him  in  charge 
to  a  policeman,  who  took  him  to  a  station  house.  Parke,  B.,  in 
course  of  his  lucid  opinion,  said,  "it  is  unquestionably  true  that  any 
bystander  may  and  ought  to  interfere  to  part  those  who  make  an 
affray,  and  to  stay  those  who  are  going  to  join  in  it  till  the  affray 
be  ended.  It  is  also  clearly  laid  down  that  he  may  arrest  the  aft'ray- 
ers  and  detain  them  until  the  heat  be  over,  and  then  deliver  them  to 
a  constable."  Then  quoting  from  Haw.  P.  C,  the  same  passage  we 
have  transcribed  from  i  Rus.  on  Crimes,  the  learned  Baron  went 
on,  "and  pleas  founded  upon  this  rule  and  signed  by  Air.  Justice 
Buller  are  to  be  found  in  9  Went.  Plead.  344,  345,  and  DeGrey,  C.  J., 
on  the  trial,  held  the  justification  to  be  good.  It  is  clear,  therefore, 
that  any  person  present  may  arrest  the  affrayer  at  the  moment  of  the 
affray,  and  detain  him  until  his  passion  has  cooled  and  his  desire  to 
break  the  peace  has  ceased,  and  then  deliver  him  to  a  peace  officer. 
And  if  that  be  so,  what  reason  can  there  be  why  he  cannot  arrest  an 
affrayer  after  the  actual  violence  is  over,  but  whilst  he  shows  a  dis- 
position to  renew  it  by  persisting  in  remaining  on  the  spot  where  he 
has  committed  it  ?  Both  cases  fall  within  the  same  principle,  which 
is,  that,  for  the  sake  of  the  preservation  of  the  peace,  any  individual 
who  sees  it  broken  may  restrain  the  liberty  of  him  whom  he  sees 
breaking  it,  so  long  as  his  conduct  shows  that  the  public  peace  is 
likely  to  be  endangered  by  his  acts.*  In  truth,  whilst  those  are  as- 
sembled who  have  committed  acts  of  violence  and  the  danger  of 
their  renewal  continues,  the  affray  itself  may  be  said  to  continue ; 
and  during  the  affray  the  constable  may  not  merely  on  his  own  view, 


''Accord-'  Cohen  v.  Htiskisson,  2  M.  &  W.  477  (1837)  note;  Price  v. 
Seeley,  10  CI.  &  F.  28  (1843)  ;  Quiiui  v.  Heisel,  40  Mich.  576  (1879).  Sim- 
ilarly either  a  private  person  or  an  officer  has  the  right  to  arrest  one,  who 
though  not  having  previously  broken  the  peace,  gives  such  person  or  officer, 
by  his  overt  acts,  reasonable  ground  to  apprehend  that  unless  arrested  he 
will  immediately  break  the  peace,  but  the  mere  fact  that  the  plaintiff  is  still 
at  the  place  where  he  has  previously  broken  the  peace  will  not  justify  the 
belief  that  he  intends  to  renew  the  affray,  Quinn  v.  Heisel,  40  ]Mich.  576 
(1879),  nor  will  the  past  commission  of  a  misdemeanor  together  with  oppor- 
tunity to  repeat  it  justify  an  arrest,  Pinkerton  v.  I'erberg,  78  Mich.  573 
n889),  Reg.  v.  Mabel,  9  C.  &  P.  474  (1840),  Knot  v.  Gay,  1  Root  66  (Conn. 
1774).  "Preventive  measures  to  be  effective,  must  be  taken  on  the  appearance 
of  things.  It  is  too  late,  after  the  mischief  is  accomplished" — Hayes  v. 
Mitchell,  80  Ala.  183  (1885).  Any  person  is  entitled  to  restrain  one  who  is 
about  to  commit  a  felonv  and  keep  him  in  custodv  until  he  can  be  handed 
over  to  a  constable,  Handcock  v.  Baker,  2  B.  &  P.  260  (1800). 

°The  right  of  a  private  person  arresting  or  causing  the  arrest  depends 
on  the  actual  guilt  of  the  person  arrested,  suspicion,  no  matter  how  reason- 
able, gives  no  such  right,  Palmer  v.  Maine  Cent.  R.  Co.,  92  Maine  399  (1899)  ; 
and  see  Cook  v.  Nethercote,  6  C.  &  P.  741  (1835).  As  to  the  right  of  a  peace 
officer  to  arrest  on  reasonable  suspicion  of  a  breach  of  the  peace,  or  criminal 
offence  less  than  felonv.  compare  Shanlev  v.  Wells.  71  III.  78  (1873).  Phillips 
v.  Fadden,  125  Mass.  198  (1878),  Gold'v.  Armer.  140  App.  Div.  73  (X.  Y. 
1910)  ;  and  State  v.  Hunter,  106  X.  Car.  796  (1890),  with  State  v.  Johnson,  5 
Harr.  507  (Del.  1853),  and  McCullough  v.  Commonzfealih.  67  Pa.  30  (1870)  ; 
and  see  Palmer  v.  Maine  Cent.  R.  Co.,  92  Maine  399  (1899),  and  Enright  v. 
Gibson,  219  111.  550  (1906),  construing  the  provisions  of  the  Illinois  Criminal 
Code. 


BALTIMORE    &C    R.    CO.    Z'.    CAIX.  983 

but  on  the  information  and  complaint  of  another,  arrest  the  of- 
fender; and,  of  course,  the  person  so  complaining  is  justified  in  giv- 
ing the  charge  to  the  constable.  Lord  Hale,  P.  C,  89  *  *  '■'  It  is 
clear  upon  facts  that  there  was  a  defence  on  the  ground  of  the  de- 
fendant's right  to  arrest  for  a  breach  of  the  peace  in  his  presence." 
See  also  Grant  v.  Moser,  5  M.  &  Gr.  127 ;  Simmons  v.  Milligan,  2  C. 
B.  524;  Webster  v.  Watts,  11  Q.  B.  311  (63  E.  C.  L.  R.)  ;  Cohen  v. 
Hiiskision,  2  M.  &  W.  477;  Shatv  v.  Chairitie,  3  C.  &  K.  21  ;  Burns 
V.  Erben,  40  N.  Y.  466;  Smith  v.  Donnelly,  66  111.  464;  Tiedeman 
on  Lim.  Police  Power,  84;  State  v.  Sims,  16  S.  Car.  486 — a  case 
strikingly  opposite. 

Now,  if  it  be  true  that  the  plaintiff  was  guilty  of  the  reprehen- 
sible and  disorderly  conduct  attributed  to  him  by  the  witnesses,  he 
was  incontestably  engaged  in  a  flagrant  and  outrageous  breach  of 
the  peace,  as  pronounced  as  if  there  had  been  an  actual  affray  dur- 
ing the  whole  time  he  was  in  the  defendant's  car ;  and  it  was  clearly 
lawful,  under  these  conditions,  for  the  conductor  to  expel  him  and 
his  drunken  companions  from  the  train  if  he  had  a  sufficient  force 
to  overcome  their  threatened  resistance,  or  else  to  arrest  them  all 
without  warrant  and  then  deliver  them  to  the  first  peace  officer  he 
could  procure  within  a  reasonable  time.     If  this  were  not  so,  then, 
as  said  by  Lord  C.  J.  Denman  in  JVebster  v.  Watts,  supra,  "the 
peace  of  all  the  world  would  be  in  jeopardy."    And  it  would  be  in 
jeopardy  because  if  in  such  and  similar  instances  no  arrest  could  be 
lawfully  made  without  a  warrant,  the  culprit,  "if  transient  and  un- 
known, would  escape  altogether,"  before  a  warrant  could  be  ob- 
tained.    Mitchell  V.  Lemmon,  34  Md.  181.    And  there  would  soon 
cease  to  be  any  order  or  any  security  or  protection  afforded  the  pub- 
lic on  swiftly  moving  railroad  trains,  or  even  elsewhere,  unless  a 
peace  officer  were  constantly  present.     The  delay  necessarily  inci- 
dent to  obtaining  a  warrant  would  be  in  many,  if  not  in  most  cases 
of  this  and  a  kindred  character,  equivalent  to  an  absolute  immunity 
from  arrest  and  punishment ;  and  should  the  name  of  the  off'ender 
be  unknown,  he  most  probably  never  would  be  apprehended  if  once 
suffered  to  depart.  The  law  is  not  so  impotent  and  ineffective  as  that. 
Being  physically  unable  to  expel  these  alleged  riotous  persons  from 
the  train,  the  conductor  telegraphed  for  a  peace  officer,  and  without 
delay,  and  whilst  the  plaintiff  was  still  drunk,  caused  his  arrest  the 
instant  the  officer  thus  summoned  came  in  view  of  the  plaintiff.    If, 
then,  any  bystander  could,  in  the  language  of  Baron  Parke,  "for  the 
sake  of  the  preservation  of  the  peace    *    *    *    restrain  the  liberty  of 
him  whom  he  sees  breaking"  the  peace,  the  act  of  the  conductor  in 
telegraphing  for  the  policeman  and  within  a  short  space  of  time 
thereafter  handing  the  plaintiff'  over  to  the  officer,  was  in  no  respect 
different  from  a  formal  arrest  of  the  plaintiff  by  the  conductor,  in 
the  midst  of  the  riot  and  disorder,  and  the  prompt  delivery  of  him 
afterward  to  the  officer.    If  the  plaintiff  was  not  in  fact  arrested  by 
the  conductor  because  of  the  presence  of  superior  resisting  force, 
that  fact  cannot  make  the  subsequent  act  of  the  conductor  in  point- 
ing out  the  plaintiff  to  the  officer,  wrongful  or  illegal.    The  charge, 


984  WAHL    V.    WALTON. 

according  to  the  plaintiff's  own  testimony,  was  sustained ;  a  fine 
was  imposed  and  he  paid  it.  The  accusation  was  therefore  well- 
founded,''  and  what  was  done  by  the  conductor,  if  the  facts  testified 
to  by  the  defendant's  witnesses  be  credited,  was  undeniably  lawful 
under  all  the  circumstances.  If  this  be  so,  then  there  is  obviously  no 
cause  of  action  against  the  defendant,  because  no  wrong  has  been 
done  to  the  plaintiff.  This  is  the  theory  of  the  defendant's  fifth 
prayer.  That  prayer  being  correct  in  principle  and  proper  in  form 
ought  to  have  been  granted. 

Judgment  reversed  with  costs  above  and  below,  and  new  trial 
awarded. 


WAHL  V.  WALTON. 
Supreme  Court  of  Minnesota,  1883.    30  Minn.  506. 

GiLFiLLAN,  C.  J.  Gen.  St.  1878,  c.  105,  §  11,  provides:  "A 
peace  officer  may,  without  a  warrant,  arrest  a  person — First,  for  a 
public  offense  committed  or  attempted  in  his  presence ;  second, 
Avhen  a  person  arrested  has  committed  a  felony,  although  not  in  his 
presence;  third,  when  a  felony  has  in  fact  been  committed,  and  he 
has  reasonable  cause  for  believing  the  person  arrested  to  have  com- 
mitted it ;  fourth,  on  a  charge  made,  upon  reasonable  cause,  of  the 
commission  of  a  felony  by  the  party  arrested." 

This  action  is  for  false  imprisonment.  The  defendant  justi- 
fies the  imprisonment  as  upon  an  arrest  of  plaintiff,  made  by  him. 
then  a  police  ofiicer  of  the  city  of  Minneapolis,  without  a  warrant, 
for  a  violation,  in  his  presence,  of  an  ordinance  of  that  city.  There 
was  evidence  tending  to  show  that,  about  noon,  the  plaintiff  violated 
the  ordinance  in  the  presence  of  defendant.  The  defendant  did  not 
then  attempt  to  make  the  arrest,  but  went  about  his  other  duties 
during  the  afternoon,  and  arrested  plaintiff  at  5  or  6  o'clock  in  the 
evening.  There  was  also  evidence  tending  to  show  that  plaintiff 
was  committing  a  similar  violation  of  the  ordinance  at  the  time  of 
the  arrest.  The  court  instructed  the  jury,  in  effect,  that  if  plaintiff 
was,  at  the  time  of  the  arrest,  committing  a  violation  of  the  ordi- 
nance, that  would  justify  the  arrest,  though  without  a  warrant,  but 
that  defendant  had  no  authority  to  arrest  in  the  evening  for  a  vio- 
lation at  noon. 

At  the  common  law,  a  constable  might,  without  warrant,  arrest 
for  a  breach  of  the  peace  committed  in  his  view.  4  Bl.  Com.  292. 
But  it  was  well  settled  that  in  case  of  an  offence  not  a  felony,  the 
arrest  must  have  been  made  at  the  time  of,  oj  within  a  reasonable 
time  after,  its  commission.  Regina  v.  Walker,  25  Eng.  Law  &  Eq. 
589 ;  Cook  V.  Nethcrcotc,  6  C.  &  P.  741  ;  Clifford  v.  Brandon,  2 
Camp.  358;  Dercconrt  v.  Corbishley,  5  El.  &  Bl.  188;  Phillips  v. 
Trull,  1 1  John.  486 ;  Taylor  v.  Strong,  3  Wend.  384 :  Meyer  v.  Clark, 
41  X.  Y.  Sup.  Ct.  107.  In  case  of  felony  actually  committed,  al- 
though not  in  his  presence,  he  might,  upon  probable  suspicion,  arrest 
without  a  warrant.    The  reason  for  the  distinction  lay  in  the  greater 


LEGER   v.    WARREN,  9^5 

gravity  of  the  latter  class  of  offences,  and  the  greater  importance  to 
the  public  of  bringing  the  offenders  to  punishment. 

When  it  is  said  that  the  arrest  must  be  made  at  the  time  of  or 
immediately  after  the  offence,  reference  is  had,  not  merely  to  time, 
but  rather  to  sequence  of  events.  The  officer  may  not  be  able,  at 
the  exact  time,  to  make  the  arrest ;  he  may  be  opposed  by  friends  of 
the  offender ;  may  find  it  necessary  to  procure  assistance ;  consider- 
able time  may  be  employed  in  the  pursuit.  The  officer  must  at  once  set 
about  the  arrest,  and  follow  up  the  effort  until  the  arrest  is  effected. 
In  Regina  v.  Walker,  supra,  some  two  hours  had  elapsed  between, 
the  offence  and  the  arrest,  and  it  was  held  that  the  authority  to 
arrest  was  gone,  because  there  was  no  continued  pursuit ;  and  the 
same  was  held  in  Meyer  v.  Clark,  supra,  because  the  officer  had  de- 
parted and  afterward  returned,  the  court  saying,  the  shortness  of  the 
interval  does  not  affect  the  question.  In  this  case,  some  five  hours 
having  elapsed  between  what  occurred  at  noon  and  the  arrest,  dur- 
ing which  the  defendant  was  not  about  anything  connected  with  the 
arrest,  the  court  was  right  in  its  instructions  that  there  was  no  au- 
thority to  arrest  for  that  occurrence. 

The  record  of  the  plaintiff's  conviction  before  the  municipal 
court  was  res  inter  alios  acta,  and  therefore  not  competent. 

Order  affirmed.^ 

LEGER  V.  WARREN. 

Supreme  Court  of  Ohio,  1900.    62  Ohio  St.  500. 

Williams,  J.  It  was  shown  on  the  trial,  that  the  plaintiff  was 
arrested  by  the  defendant  officers  without  warrant,  as  alleged  in  the 
petition,  and  was  imprisoned  after  such  arrest  for  a  period  of  more 
than  five  days,  without  any  warrant  for  his  detention,  and  without 
any  cTiafge  having  been  made  against  him  Taefore  any  competent 
tribunal,  or  opportunity  allowed  him  for  a  trial ;  that  during  his 
imprisonment  he  frequently  demanded  to  be  informed  of  the  nature 
of  the  charge  on  which  he  was  detained,  and  to  be  taken  before  a 
proper  court  for  a  hearing  thereon ;  and  that,  at  the  end  of  the 
period  named,  when  he  was  discharged  from  prison,  no  complaint 
had  been  filed  against  him,  nor  trial  allowed  him.  These  facts  were 
not  disputed.  The  evidence  of  the  defense  was  directed  entirely  to 
the  establishment  of  good  cause  for  the  arrest,  and  to  the  subject  of 
damages.  There  was  no  impropriety,  therefore,  in  the  court  treat- 
ing as  undisputed  the  facts  above  stated  and  no  complaint  is  urged 
here  on  that  account.  The  objection  made,  is  to  that  part  of  the 
charge  by  which  the  jury  were  instructed,  in  substance,  that  though 
the  defendants  making  the  arrest  or  causing  it  to  be  made,  had  goo'l 
cause  therefor,  that  did  not  justify  the  imprisonment  of  the  plaintiff 
thereunder  for  a  longer  period  than  was  reasonably  necessary  to 
enable  the  defendants  to  obtain  a  warrant,  or  authority  from  some 
competent  tribunal,   for  his   further  detention  ;   and,  that  his  con- 

'See  also,  State  v.  Letvis,  50  Ohio  St.  179  (1893),  p.  187.  semble. 


986  LEGER    t'.    WARREX. 

tinned  imprisonment  without  such  warrant  or  authority,  rendered 
them  hable  as  wrongdoers  from  the  beginning,  leaving  only  the 
question  of  damages  for  the  consideration  of  the  jury.  In  this 
charge  we  think  there  was  no  error.  It  is  provided  by  Section  7130, 
of  the  Revised  Statutes,  that :  "When  a  felony  has  been  committed, 
any  person  may,  without  a  warrant,  arrest  another  who  he  believes, 
and  has  reasonable  cause  to  believe,  is  guilty  of  the  offense,  and  may 
detain  him  until  a  legal  warrant  can  be  obtained." 

The  right  to  make  arrests  without  warrant  is  conferred  by  the 
statute  in  order  to  prevent  the  escape  of  criminals  where  that  is 
likely  to  result  from  delay  in  procuring  a  writ  for  their  apprehen- 
sion ;  and  it  was  not  the  purpose  to  dispense  with  the  necessity  of 
obtaining  such  writ  as  soon  as  the  situation  will  reasonably  permit. 
To  afford  protection  to  the  officer  or  person  making  the  arrest,  the 
authority  must  be  strictly  pursued ;  and  no  unreasonable  delay  in 
procuring  a  proper  warrant  for  the  prisoner's  detention  can  be  ex- 
cused or  tolerated.  Any  other  rule  would  leave  the  power  open  to 
great  abuse  and  oppression.  The  detention  of  the  plaintiff  in  prison 
for  a  period  of  five  days,  and  more,  without  any  writ,  or  order  of 
any  court,  and  in  disregard  of  his  repeated  demands  to  be  given  a 
hearing,  was  without  excuse  or  palliation.  None  was  offered.  It 
was  a  palpable  and  arbitrary  abuse  of  official  power.  Not  having 
pursued  their  authority  to  arrest  without  warrant,  by  failing  to  ob- 
tain within  a  reasonable  time,  a  writ  or  order  for  the  plaintiff's  de- 
tention, the  defendants  placed  themselves  in  the  same  situation  as 
if  they  had  originally  acted  without  authority.  It  is  a  familiar  rule 
that  one  who  abuses  an  authority  given  him  by  law  becomes  a  tres- 
passer ab  initio.^ 

In  behalf  of  the  plaintiffs  in  error,  Leger,  ]\Iiller,  and  Frank,  it 
is  contended  that,  as  they  were  subordinate  officers  acting  under 
orders  from  the  chief  of  the  police  force  in  arresting  the  defendant 
in  error  and  delivering  him  into  the  custody  of  the  patrolmen,  who 
conveyed  him  to  the  city  prison  in  obedience  to  the  chief's  orders, 
they  should  not  be  held  responsible  for  his  subsequent  imprisonment, 
nor  for  the  omission  to  obtain  the  necessary  warrant  and  bring  him 
to  trial.  But  the  delivery  of  the  plaintiff"  after  his  arrest,  into  the 
custody  of  another  person,  to  be  by  him  taken  to  prison,  could  not, 
we  think,  absolve  the  arresting  officers  from  the  duty  required  of 
them  to  obtain  the  writ  necessary  to  legalize  his  further  imprison- 
ment. If  it  could,  the  imprisonment  might  with  impunity  be  pro- 
longed indefinitely  by  the  change  of  custodians  and  places  of  con- 
finement, at  short  intervals.    The  arrest  having  been  made  without 


^As  to  this  see  Gray,  J.  in  Brock  v.  Stimson,  1.08  Mass.  520  (1871),  p. 
521,  "If  he  fails  to  execute  or  return  the  process  as  required,  he  may  not  per- 
haps in  the  strictest  sense  be  said  to  be  a  trespasser  ab  initio;  but  he  is  often 
called  such,  for  his  whole  justification  fails,  and  he  stands  as  if  he  never  had 
any  authority  to  take  the  property"  (or  seize  the  plaintiff's  person),  "and 
therefore  appears  to  have  been  a  trespasser  from  the  beginning."  See  also. 
Mulberry  v.  Fuel!' art.  203  Pa.  St.  573  (1902),  holding  that  a  failure  to  pro- 
ceed with  the  prosecution,  as  required,  being  a  mere  nonfeasance,  could  not 
make  the  original  arrest  a  trespass  ab  initio. 


RUSH    v.    BUCKLEY.  987 

warrant,  it  was  necessary,  in  order  to  preserve  the  legality  of  that 
action,  that  the  proper  steps  should  be  taken  to  prevent  the  further 
detention  of  the  prisoner  from  becoming  unlawful ;  for,  as  we  have 
seen,  unless  those  steps  be  taken,  all  legal  protection  for  such  arrest 
ceases,  and  the  arresting  officers  become  wrongdoers  from  the  be- 
ginning, liable  as  such,  equally  with  those  by  whom  the  unlawful 
imprisonment  is  continued.  If  the  arresting  officers  choose  to  rely 
on  some  other  person  to  perform  that  required  duty,  they  take  upon 
themselves  the  risk  of  its  being  performed,  and  unless  it  is  done  in 
proper  time,  their  liability  to  the  person  imprisoned,  is  in  no  wise 
lessened  or  affected.  There  was  no  order  of  a  superior  officer  in 
this  case  that  did  or  could  prevent  the  defendants  who  made  the 
arrest  from  complying  with  the  requirement  of  the  law  in  the  re- 
spect indicated,  nor  excuse  their  omission  to  comply  therewith. 

Judgment  affirmed." 

(b)  Arrest  under  warrant  and  seizure  of  goods  under  judicial 

process. 


RUSH  V.  BUCKLEY.  ; 

Supreme  Judicial  Court  of  Maine,  1905.     100  Maine,  322. 

WiswELL,  C.  J.  The  plaintiff  had  been  arrested  upon  two  oc- 
casions, brought  before  the  Augusta  Municipal  Court,  tried,  con- 
victed, sentenced  to  pay  a  fine  in  each  case  and  committed  to  jail  in 
default  of  such  payment,  upon  warrants  issued  by  that  court.  The 
offense  alleged  in  the  complaint  and  warrant  in  each  case  was  the 
violation  of  an  ordinance  of  the  City  of  Augusta  regulating  public 
carriages  therein,  and  which  prohibited  all  persons  from  driving 
such  a  carnage  in  the  City  of  Ajjgusta_utitbout-.a-4icense-Aef#f€rrr 
under  a  penalty  therein  providedllln  these  two  cases,  reported  and 
argued  together,  the  plaintiff  sues  the  judge  of  the  municipal  court 
who  issued  the  warrants,  the  officer  who  served  them  and  the  per- 
sons who  made  the  two  complaints,  for  false  imprisonment,  upon 
the  ground  that  the  ordinance  had  never  gone  into  eft'ect,  and  was 
void,  because  it  never  had  been  published  in  some  newspaper  printed 
in  Augusta  as  required  by  the  statute  authorizing  such  ordinances. 
R.  S.,  c.  4,  sec.  93,  paragraph  I^- 

Assuming  that  the  ordinance  never  became  effective  because  of 


■Accord:  Burke  v.  Bell,  36  Maine  317  (1853);  Linnen  v.  Banfeld  114 
Mich.  93  (1897);  Burk  v.  Howlev,  179  Pa.  St.  539  (1897);  Newbv  ^\  Gituu 
74  Tex.  455  (1889).  See  also,  Brock  v.  Stimson,  108  Mass.  520  (1871),  fail- 
ure to  go  on  with  prosecution,  plaintiff  released  after  an  hour's  detention; 
Phillips  V.  Fadden,  125  Mass.  198  (1878).  where,  however,  the  plaintiff's  re- 
lease was  at  his  own  request;  Holley  v.  Mix,  3  Wend.  350  (X.  Y.  1829),  and 
Gamier  v.  Squires,  62  Kans.  321  (1900),  in  the  first  case  an  oificer,  in  the 
second  a  private  person,  used  the  arrest  to  extort  the  return  of  money  alleged 
to  be  stolen;  Richardson  v.  Dybedahl,  14  S.  Dak.  126  (1900);  Gibson  v. 
Holmes,  78  Vt.  110  (1905),  plaintiff  taken  to  jail  in  another  county. 


988  RUSH    Z'.    BLXKLEY. 

this  failure  to  publish  it,  the  question  presented  by  the  two  cases  is, 
whether  the  judge  who  issued  the  warrants,  the  officer  who  served 
them,  and  the  persons  who  made  the  complaints  upon  which  they 
Avere  issued,  or  either  of  them,  are  liable  in  damages  to  the  plaintiff 
for  this  alleged  false  imprisonment. 

As  to  the  liability  of  the  defendants  who  made  the  original  com- 
plaints upon  which  the  warrants  were  issued :  It  is  settled  by  an 
almost  unbroken  line  of  authorities,  that  where  a  person  does  no 
more  than  to  prefer  a  complaint  to  a  magistrate,  in  a  matter  over 
which  the  latter  has  a' general  jurisdiction,  he  is  not  liable  in  tres- 
pass for  false  imprisonment  for  the  acts  done  under  the  warrant 
which  the  magistrate  thereupon  issues,  even  though  the  magistrate 
has  no  jurisdiction  over  the  particular  complaint.  Barker  v.  Stet- 
son, 7  Gray,  53  ;  Langford  v.  Boston  &•  Albany  R.  R.  Co.,  144  Mass. 
431;  afford  V.  Wiggins,  50  Minn.  401;  Murphv  v.  IValters,  34 
j\Iich.  180;  Teal  v.  Fisscl,  28  Fed.  R.  351.  If  the  complaint  is 
malicious,  and  without  probable  cause,  the  complainant  would  be 
answerable  in  another  form  of  action,  and  it  would  be  no  defense 
that  the  acts  stated  to  the  magistrate,  upon  which  the  w^arrant  was 
issued,  did  not  constitute  a  criminal  offense.  Finn  V.  Brink,  84 
i\Iaine,  261.  In  order  for  a  complainant  to  be  liable  in  this  form  of 
action,  whether  his  motives  were  malicious  or  not,  he  must  do 
something  more  than  merely  to  make  complaint  before  a  magistrate 
having  jurisdiction  of  the  party  and  over  the  general  subject-mat- 
ter, by  interfering  and  instigating  the  officer  to  enforce  the  war- 
rant. "The  rule  is,  that  if  a  stranger  voluntarily  takes  upon  him- 
self to  direct  or  aid  in  the  service  of  a  bad  warrant,  or  interposes 
and  sets  the  officer  to  do  execution,  he  must  take  care  to  find  a 
record  that  will  support  the  process,  or  he  cannot  set  up  and  main- 
tain his  justification."    Emery  v.  Hapgood,  7  Gray,  55. 

There  is  no  evidence  in  this  case  sufficient  to  take  it  out  of  the 
general  rule  as  to  the  liability  of  the  complainants.  Neither  of  these 
complainants  aided  or  in  any  way  participated  in  the  arrest  of  the 
plaintiff  upon  the  warrants  or  in  his  commitment  to  jail  after  the 
hearing  in  default  of  the  payment  of  the  fine  imposed.  They  did  not 
in  any  way  take  part  in  the  plaintiff's  arrest  or  commitment,  nor  did 
they  officiously  interfere  therewith  by  giving  directions  to  the  officer, 
or  otherwise.  It  is  true,  that  one  of  the  complainants,  when  asked 
by  the  judge,  after  the  imposition  of  the  fine,  as  to  whether  or  not 
he  wanted  the  sentence  enforced,  replied  in  the  affirmative,  but  this 
was  no  such  interference  with  the  service  of  the  warrant  of  arrest, 
or  of  commitment,  as  should  make  him  liable  therefor,  and  amounted 
to  no  more  than  the  making  of  the  original  complaint^/ 

As  to  the  liability  of  the  officer :  For  reasons  founded  on 
public  policy,  and  in  order  to  secure  a  prompt  and  effective  service 
of  legal  process,  the  law  protects  its  officers  in  the  performance  of 
their  duties,  if  there  is  no  defect  or  want  of  jurisdiction  apparent 
on  the  face  of  the  writ  or  warrant  under  which  they  act.  The  officer 
isjiQtJiQUjtad-tQlook  beyond  his  warrant.  He  is  not  to  exercise  his 
judgment  touclTTngT!fe~\^aTi3It}rorthF^ocess  in  point  of  law;  but 


RUSH    V.    BUCKLEY.  9^9 

if  it  is  in  due  form,  and  is  issued  by  a  court  or  magistrate  appar- 
ently having  jurisdiction  of  the  case  or  subject-matter,  he  is  to  obey 
jts_4^oriimauds^  In  such  case,  he  may  justify  under  it  although  in 
fact  it  may  have  been  issued  without  authority,  and  therefore  be 
wholly  void.  Emery  v.  Hapgood,  7  Gray,  55.  The  theory  of  the 
law  is  to  protect  an  officer  in  his  acts  of  official  duty  so  far  as  it 
reasonably  can  without  injustice  to  others.  The  rule  should  be  lib- 
erally interpreted  in  the  officer's  behalf.  Elsemore  v.  Longfelloiv, 
76  Maine,  128.  Where  the  process  is  in  due  form  and  comes  from 
a  court  of  general  jurisdiction  over  the  subject-matter,  the  officer 
is  justified  in  acting  according  to  its  tenor,  even  if  irregularities 
making  the  process  voidable  have  previously  occurred.  Tellefsen^  v. 
Fee,  168  Mass.  188,  wherein  numerous  cases  are  cited  and  consid- 
ered. Where,  however,  the  process  is  void  on  its  face,  or  where  the 
court  or  magistrate  issuing  the  warrant  has  no  general  jurisdiction 
over  the  subject-matter,  the  officer  is  not  protected  by  his  process. 

We  have  numerous  illustrations  of  this  latter  rule  in  the  re- 
ported decisions  of  this  court,  some  of  which  may  be  referred  to 
for  the  purpose  of  showing  the  ground  upon  which  all  of  these  de- 
cisions have  been  based.  In  Warren  v.  Kelley.  80  IMaine,  512,  the 
process  commanded  the  officer  to  seize  a  vessel  for  the  purpose  of 
enforcing  a  lien  created  by  a  state  statute  for  repairs  upon  a  vessel. 
The  statute  authorizing  the  enforcement  of  such  a  lien  by  a  pro- 
ceeding in  the  state  court  was  unconstitutional.  The  court  had 
no  jurisdiction  over  the  subject-matter,  which,  by  the  constitution 
of  the  United  States,  was  vested  in  the  federal  courts.  It  was  there- 
fore held  by  this  court  that  the  officer  was  not  protected  by  the 
process,  because  the  process  was  absolutely  void  inasmuch  as  the 
state  court  had  no  jurisdiction  over  the  subject-matter,  and,  "suffi- 
cient appeared  upon  its  face  (the  process)  to  show  that  it  was  not 
from  a  court  of  competent  jurisdiction  in  reference  to  the  subject- 
matter."^ 

In  Stilphen  v.  Ulmer,  88  Maine,  211,  the  plaintiff  resided  and 


'^Accord:  Campbell  v.  Sherman,  35  Wis.  103  (1874),  closely  similar 
facts;  Fishery.  McGirr,  1  Gray  1  (Mass.  1854),  general  search  warrant  issued 
under  act  subsequently  held  unconstitutional ;  Sumner  v.  Beeler,  50  Ind.  341 
(1875),  arrest  for  drunkenness  under  unconstitutional  act;  Ely  v.  Thompson, 
3  A.  K.  Marsh.  70  (Ky.  1820)  ;  but  see  Cottam  v.  Oregon,  98  Fed.  570  (C.  C. 
Dist.  of  Oregon  1899)  and  Williams  v.  Morris,  22  Ohio  Circ.  (32  O.  C.  C.  R.) 
453  (1911).  As  to  the  liability  of  a  party  who  sues  out  and  directs  the  exe- 
cution of  process  issued  in  strict  compliance  with  a  statute  afterwards  de- 
clared unconstitutional,  see  Mcrrit  V.  St.  Paul,  11  Minn.  223  (1866).  So  a 
ministerial  officer  is  not  protected  by  a  process  of  court  or  command  of  a 
superior,  even  the  sovereign,  which  is  prohibited  by  the  constitution,  unwrit- 
ten or  written,  or,  though  not  prohibited,  is  beyond  the  constitutional  power 
of  such  court  or  superior,  Eniick  v.  Carrington,  2  Wils.  275,  19  How.  St.  Tr. 
1029  (1765),  general  search  warrant  issued  by  one  of  His  Majesty's  principal 
Secretaries  of  State:  Grumon  v.  Raymond,  1  Conn.  40  (1814);  Sand  ford  v. 
Nichols,  13  Mass.  286  (1816),  similar  warrants  issued  by  a  magistrate:  JVise 
V.  Withers,  3  Cranch  331  (U.  S.  1806),  process  for  collection  of  fine  imposed 
by  Court  Martial  upon  one  exempt  by  the  Constitution  from  military 
service;  Kilbourn  v.  Thompson.  103  U.  S.  168  (1880),  Sergeant-at-Arms  ex- 
ecuting order  which  congressional  committee  had  no  power  to  make. 


990 


RUSH    Z'.    BUCKLEY. 


was  arrested  in  Kennebec  County  upon  a  warrant  issued  by  a  trial 
justice  of  Knox  County  for  violating  the  fish,  and  game  laws  in 
Lincoln  County;  the  trial  justice  clearly  had  no  jurisdiction  over 
the  subject-matter  of  the  ollense,  or  over  the  offender,  and  these 
facts  were  apparent  upon  the  face  of  the  warrant,  so  that  the  officer 
who  served  the  process  was  not  protected  by  it.  In  Brozvn  v. 
Hozvard,  86  Maine,  342,  the  writ  under  which  the  officer  justified, 
in  an  action  of  trover  against  him,  was  void,  and  the  defect  was  ap- 
parent upon  the  face  of  the  writ  and  disclosed  to  the  officer  a  want 
ot  jurisdiction.  It  was  therefore  held  that  it  afforded  him  no  pro- 
tection. In  Elsemore  v.  Longfellow,  76  Maine,  128,  where  the 
court  said :  "The  officer  is  protected  unless  the  process  is  void,  and 
unless  he  can  see  from  the  face  of  the  process  itself  that  it  is  void," 
the  court  held  that  the  absolute  w^ant  of  jurisdiction  in  the  magis- 
trate was  apparent  upon  the  face  of  the  papers  and  therefore  af- 
forded no  protection  to  the  officer  who  justified  thereunder.  In 
Jacques  v.  Parks,  96  Maine,  268,  the  tax  warrant  upon  which  the 
officer  arrested  the  plaintiff  was  "upon  its  face  invalid  and  void." 
It  was  therefore  held  to  afford  the  officer  no  protection. 

It  Is  apparent  that  in  all  of  these  decisions  of  our  own  court, 
some  of  which  are  cited  and  relied  upon  by  counsel  for  the  plain- 
tiff, the  officer  was  held  liable  because  of  the  fact  that  the  proc- 
ess'under  which  he  attempted  to  justify  was  void  upon  its  face," 
or  because  the  court  or  magistrate  by  whom  the  process  was  issued 
had  no  jurisdiction  over  the  subject-matter,  and  the  process  itself 
clearly  showed  the  want  of  jurisdiction.^  None  of  these  cases  are 
authority  for  the  proposition  that  a  warrant,  fair  upon  its  face, 
which  discloses  no  defect  or  want  of  jurisdiction,  and  which  was  in 
fact  issued  by  a  court  having  general  jurisdiction  of  offenses  of 
like  nature,  does  not  afford  protection  to  the  officer.  Upon  the  other 
hand,  the  doctrine  that  an  officer  is  protected  under  such  circum- 
stances is  abundantly  supported  by  the  authorities. 


""Accord:  Campbell  v.  Webb,  11  Md.  471  (1857),  attachment  served 
without  the  duplicate  "short  note"  required  by  statute  to  be  served  with  it; 
Spragne  v.  Birchard,  1  Wis.  457  (1853),  warrant  on  its  face  defective;  Clyma 
V  Keiiiiedv,  64  Conn.  310  (1894)  ;  mittimus  not  stating  cause  of  commitment; 
Hazen  v.  'Creller,  83  Vt.  460  (1910),  warrant  issued  on  unsigned  complaint 
attached  to  it;  Lucck  v.  Heisler,  87  Wis.  644  (1894),  warrant  on  which  the 
plaintiff  was  arrested  for  obtaining  goods  under  false  pretenses  stated  that 
the  seller  knew  the  falsity  of  the  pretense;  Pearce  v.  Atwood,  13  Mass.  324 
(1816).  warrant  issued  on  Sunday. 

'^Hilbish  V.  I  lower,  58  Pa.  93  (1868),  warrant  for  school  taxes  issued  by 
justices  of  peace  instead  of  school  board;  Stephens  v.  IVilkins,  6  Pa.  260 
(1847),  tax  warrant  issued  to  improper  officer;  Heller  v.  Clarke,  121  Wis.  71 
(1904,),  warrant  issued  by  magistrate  whose  jurisdiction  over  criminal  of- 
fenses had  by  act  of  legislature  been  transferred  to  another  tribunal :  Bagnall 
V.  Ableman,'4  Wis.  163  (1855).  arrest  for  a  bailable  offense  in  Wisconsin 
under  warrant  commanding  the  bringing  of  the  person  forthwith  into  the 
custody  of  the  United  States  Marshal  in  Michigan,  without  giving  him  op- 
portunity to  find  bail ;  and  see  cases  cited  by  Lathrop,  J.  in  Tellefsen  v.  Fee, 
post.  Under  the  provisions  of  the  Georgia  Code,  §  2991,  an  officerwho  in 
good  faith  executes  a  warrant  defective  in  form  or  void  for  want  of  jurisdic- 
tion is  not  guilty  of  false  imprisonment,  Manning  v.  Mitchell,  73  Ga.  660 
(1884). 


RUSH    V.    BUCKLEY.  99 1 

In  Nowell  v.  Tripp,  6i  Maine,  426,  wherein  this  court  held  that 
a  collector  of  taxes  was  protected  by  the  warrant  delivered  to  him 
by  the  assessors,  in  arresting  the  plaintiff  who  had  removed  to  and 
become  a  citizen  of  another  town,  the  court  quotes  with  approval 
the  following  language  from  Erskine  v.  Hohnhach,  14  Wall.  613 : 
"Whatever  may  have  been  the  conflict  at  one  time  in  the  adjudged 
cases,  as  to  the  extent  of  protection  afforded  to  ministerial  officers 
acting  in  obedience  to  process,  or  orders  issued  to  them  by  tribunals 
or  officers  invested  by  law  with  authority  to  pass  upon  and  deter- 
mine particular  facts,  and  render  judgment  thereon,  it  is  well  set- 
tled now,  that  if  the  officer  or  tribunal  possesses  jurisdiction  over 
the  subject-matter  upon  which  judgment  is  passed,  with  power  to 
issue  an  order  or  process  for  the  enforcement  of  such  judgment, 
and  the  order  or  process  issued  thereon  to  the  ministerial  officer 
is  regular  on  its  face,  showing  no  departure  from  the  law,  or  defect 
of  jurisdiction  over  the  person  or  property  affected,  then,  and  in 
such  cases,  the  order  or  process  will  give  full  and  entire  protection 
to  the  ministerial  officer  in  its  regular  enforcement  against  any 
prosecution  which  the  party  aggrieved  thereby  may  institute  against 
him,  although  serious  errors  may  have  been  committed  by  the  of- 
ficer or  tribunal  in  reaching  the  conclusion  or  judgment  upon  which 
the  order  or  process  is  issued."* 


^Accord:   Savacool  v.  Boughton,  5  Wend.  170  (N.  Y.  1830);  Webber  v. 
Gay,  24  Wend.  485  (N.  Y,  1840)  ;  Champaign  County  Bank  v.  Smith,  7  Ohio 
St.  42  (1857);  Barnes  v.  Barber,  1  Gilm.   (6  111.)   401   (1844);  McDonald  v. 
Wilkie,  13  111.  22  (1851)  ;  Harmon  v.  Gould,  Wright  709  (Ohio  1834)  ;  Blanch- 
ard  V.  Goss,  2  N.  H.  491  (1822),  failure  to  acquire  jurisdiction  over  person  or 
lack  of  jurisdiction  because  of  place  where  or  time  when  the  offense  was 
committed,  or  the  debt  contracted;  Marks  v.  Townsend,  97  N.  Y.  590  (1885), 
arrest  of  person  previously  arrested   for  same   debt;  Holz  v,  Rediske,  116 
Wis.  353  (1903),  process  issued  by  court  which  had  lost  jurisdiction  by  im- 
proper adjournments;  see  also,  Clarke  v.  Mav,  2  Gray  410  (Mass.  1854)  ;  and 
Mcintosh  v.  Billiard  et  al.,  95  Ark.  227  (1910)  ;  Andrews  v.  Marris,  1  Ad.  & 
E.  (N.  S.)  3  (1841),  execution  personally  issued  by  clerk  of  court  of  requests 
on  default  of  payment  of  money  ordered  to  be  paid  in  instalments,  the  clerk 
having  no  authority  to  issue  execution  for  such  defaults  except  on  order  of  the 
commissioners;  Paul  v.  Van  Kirk,  6  Binney  123  (Pa.  1813),  joint  execution  is- 
sued on  separate  judgments  ;  Jennings  v.  Thompson,  54  N.  J.  L.  55  (1891),  writ 
not  conforming  to  order  of  the  court;  Babe  v.  Coyne,  53  Cal.  261    (1878); 
Garnet  v.   Wimp,  3  B.  Mon.  360   (Ky.  1843)  ;  Codv  v.  Quinn,  6  Ire.   (Law) 
191   (N.  Car.  1845);  Billings  v.  Russell,  23  Pa.  189  (1854);  Kelsey  v.  Kla- 
bunde,  54  Nebr.  760  (1898),  defects  in  affidavits,  bonds  or  other  irregularities 
which  render  void,  or  voidable,  or  afford  a  defense  to,  the  proceedings  in 
which  the  process  was  issued,  and  this  though  the  process  is  subsequently 
vacated,  Coleman  v.  Brown,  126  App.  Div,  44  (N.  Y.  1908)  ;  Chase  v.  Ingalls, 
97  Mass.  524   (1867),  magistrate  issuing  warrant  was  also  the  attorney  who 
drew  the  writ;   Watson  v.  JVatson,  9  Conn.  140  (1832),  writ  of  replevin  for 
animal  never  impounded;  Barnett  v.  Reed,  51  Pa.  St.  190   (1865).  execution 
on  judgment  issued  after  the  debt  had  been  paid ;  Carle  v.  Delesdemicr,  13 
Maine  363  (1836),  and  Woods  v.  Davis,  34  N.  H.  328  (1857).  arrest  of  per- 
sons privileged  from  arrest;  see  also,  cases  cited  by  Lathrop  and  Knowlton, 
JJ.  in  Tcllefsen  v.  Fee,  post.    The  immunity  of  a  sheriff  attaching  goods  does 
not  depend  on  the  successful  prosecution  or  validity  of  the  action  in  which 
it  issued,  Livingston  V.  Smith,  5  Pet.  90  (U.  S.  1831);  Jackson  v.  Kimball, 
121  Mass.  204  (1876),  original  action  discontinued;  Rice  v.  Miller,  70  Tex.  613 
(1888),  sheriff  knew  the  action  was  brought  maliciously  and  without  sufficient 


992 


RUSH    V.    BUCKLFA'. 


The  case  of  Hofschulte  v.  Doc,  78  Fed.  R.  436,  is  very  much  in 
point  and  contains  a  full  discussion  of  this  question.  It  was  there 
decided  that  when  a  court  which,  though  of  inferior  and  local  juris- 
diction, has  general  jurisdiction  with  respect  to  the  violation  of  the 
ordinances  of  the  town,  entertains  a  complaint  under  such  an  ordi- 
nance, and  thereupon  issues  process,  fair  on  its  face,  to  an  officer, 
the  process  is  a  justification  to  the  officer  in  doing  the  acts  thereby 
required,  notwithstanding  the  ordinance  under  which  the  court  acts 
is  invalid,  and  that  no  action  lies  against  an  officer  for  the  acts  done 
by  him  pursuant  to  such  process. 

In  accordance  with  these  general  principles  it  is  clear  that  the 
officer  who  served  these  warrants  upon  the  plaintiff  is  not  liable  in 
damages  to  him,  even  if  the  ordinance  upon  which  the  complaints 
and  warrants  were  based  had  never  gone  into  effect  for  the  reason 
before  stated.  The  warrants  were  issued  by  the  judge  of  the 
municipal  court  of  the  city  of  Augusta,  which  court  had  general 
jurisdiction  over  the  subject-matter  of  the  violation  of  city  ordi- 
nances. When  we  speak  of  a  court  as  having  jurisdiction  over  the 
subject-matter,  we  mean,  as  said  in  State  v.  Neville,  no  Mo,  345, 
19  S.  W,  491,  "the  power  to  hear  and  determine  cases  of  the  gen- 
eral class  to  which  the  proceeding  in  question  belongs."  The  com- 
plaints were  for  the  violation  of  a  city  ordinance  in  regard  to  the 
regulation  of  public  carriages.  The  city  had  power  to  pass  such  an 
ordinance,  express  authority  therefor  being  given  by  the  statute 
R.  S.,  c.  4,  sec.  93,  paragraph  9.  This  ordinance  \yas  duly  passed 
by  the  city  government,  and  only  claimed  to  be  invalid  or  ineffective 


grounds;  Lashus  v.  Matthews,  75  Maine  446  (1883),  aliter  where  the  seizure 
under  an  attachment  or  execution  of  goods,  prima  facie  the  property  of  a 
stranger  to  the  writ,  is  justified  on  the  ground  that  they  have  been  trans- 
ferred to  such  stranger  by  the  defendant  in  the  writ  in  fraud  of  his  creditors, 
or  are  otherwise  liable  for  the  payment  of  his  debts,  as  in  Miller  v.  Bannister, 
109  Mass.  289  (1871),  in  which  case  the  sheriff  must  show,  by  judgment  ren- 
dered in  favor  of  the  plaintiff  in  the  writ  or  otherwise,  that  the  debt  is  ac- 
tually due,  Damon  v.  Bryant.  2  Pick.  411  (Mass.  1824)  ;  Sexey  v.  Adkinson, 
34  Cal.  346  (1867)  ;  Cook  v.  Hopper,  23  Mich.  511  (1871) ;  Cross  v.  Phelps, 
16  Barb.  502  (N.  Y.  1853),  In  the  following  cases  officers,  serving  tax  war- 
rants "fair"  on  their  face,  have  been  held  protected,  though  the  tax  was  levied 
on  property  improperly  listed,  Hill  v.  Figley,  25  111.  156  (1860)  ;  Bird  v.  Per- 
kins, Z2,  Mich.  28  (1875);  Moore  v.  Allegheny,  18  Pa.  55  (1851);  St. 
Louis  Mut.  Life  Ins.  Co.  v.  Charles,  47  :\Io.  462  (1871)  ;  Waldcn  v.  Dudley. 
49  Mo.  419  (1872)  ;  or  on  a  person  not  liable  to  assessment,  as  a  nonresident, 
Kclley  v.  Noyes,  43  N.  H.  209  (1861)  ;  or  where  the  tax  was  invalid  because 
of  the  absence  of  some  condition  precedent  to  the  right  to  ass^s  it,  Cunning- 
ham v.  Mitchell,  67  Pa.  78  (1870)  with  which  compare  Leachman  v.  Dough- 
erty 81  111.  324  (1876).  See  also,  Matthews  v.  Densmore,  109  U.  S.  216 
(1883)  ;  Oszvalt  v.  Smith,  97  Ala.  627  (1893)  ;  Goodwine  v.  Stephens,  6Z  Ind. 
112  (1878)  ;  Stoddard  v.  Tarbcll,  20  Vt.  321  (1848). 

The  protection  generally  given  an  officer  by  process  regular  on  its  face 
does  not  extend  to  a  case  where  "the  officer  attempts  to  overthrow  a  sale  by 
the  debtor  on  the  ground  of  fraud."  "He  must  go  back  of  his  process  ana 
show  authority  for  issuing  it.  If  he  act  under  an  execution,  he  must  show 
a  iudgment;  and  if  he  seizes  under  an  attachment,  he  must  show  the  attach- 
ment regularly  issued"— .Vo&/e  v.  Holmes,  5  Hill  194  (N.  Y.  1843)  ;  Matthews 
v  Densmore,' A2,  Mich.  461  (1880).  reversed  in  109  U.  S.  216  (1883);  Hines 
y   Chambers,  29  Minn.  7  (1882)  ;  Williams  v.  Eikenberry,  25  Nebr.  721  (188^^;. 


I 


I 


TELLEFSEX    V.    FEE.  993 

because  it  was  never  published  in  some  newspaper  printed  in  the 
city  as  required  by  the  statute  referr^d^to.  The  warrants  con- 
tained nothing  upon  their  face  to  indicate  that  the  court  which 
issued  them,  and  which  had  general  jurisdiction  over  the  subject- 
matter,  did  not  have  jurisdiction  over  this  particular  offense,  or  that 
the  facts  stated  in  the  complaint  did  not  constitute  an  offense  be- 
cause of  this  failure  to  comply  with  the  preliminary  requisite  as  to 
publication.  If  it  were  necessary  for  an  officer,  before  serving  a 
warrant  issued  by  such  a  court,  having  general  jurisdiction  of  of- 
fenses of  this  nature,  and  over  the  alleged  offender,  to  first  make 
inquiries  as  to  whether  all  of  the  necessary  preliminaries  necessary 
to  make  a  city  ordinance  effective  had  been  complied  with,  it  would 
cause  intolerable  delay  and  very  seriously  interfere  with  the  efficient 
administration  of  the  criminal  laws.  The  ministerial  officer  is 
bound  to  know  the  jurisdiction  of  the  court  which  issues  process  to 
him,  he  is  bound  to  know  whether,  from  constitutional  or  other 
reasons,  the  court  has  jurisdiction  over  offenses  of  that  nature,  but  \  A 
he  is  not  bound  to  inquire  into  the  question  of  fact  as  to  whether 
"or  not  a  city  ordinance  in  relation  to  a  subject-matter,  concerning 
which  the  city  is  by  statute  authorized  to  pass  ordinances,  has  been 
published  as  required  by  tlif  statute^' 


^^ 


TELLEFSEN  v.  FEE. 
Supreme  Judicial  Court  of  Massachusetts,  1897.     168  Mass.  188. 

Lathrop,  J.  The  Municipal  Court  of  the  city  of  Boston  had 
no  jurisdiction  of  the  action  brought  againstjlie  plaintiff  in.  this 
case  for  wages  allege3^4e--b€  due  one  JoHnsoivIand  the  writ  upon 
which  the  plaintiff  was  arrested  qnjii£sne-4u:XK:£S5--was_ofnoe^ 

It  appears,  therefore,^  that  the  consul  of  Sweden  andTTTorway 
had  exclusive  jurisdiction  of  the  controversy  or  difference  between 
Johnson  and  Tellefsen,  and  that  the  ^Municipal  Court  of  the  city 
of  Boston  had  no  jurisdiction  either  of  the  subject-matter  or  of  the 
persons  of  the  parties  in  the  action  which  the  seaman  saw  fit  to 
bring  against  the  master.  The  officer  who  arrested  the  master  was 
therefore  acting  illegally  and  without  justification,  and  is  liable  in 
this  action,  unless  he  is  protected  by  virtue  of  his  writ.  This  pre- 
sents a  question  of  some  difficulty  and  one  which  is  not  wholly  free 
from  doubt. 

Before  proceeding  to  consider  the  principal  question,  it  may 
be  well  to  state  briefly  certain  principles  laid  down  by  the  courts 
in  regard  to  which  there  is  little  or  no  dispute. 

Where  the  process  is  in  due  form  and  comes  from  a  court  of 
general  jurisdiction  over  the  subject-matter,  the  officer  is  justified 

^  Henke  v.  McCord,  55  Iowa  379  (188Cr),  warrant  issued  to  enforce  an 
ordinance  outside  the  powers  conferred  by  the  state  upon  the  municipality 
enacting  it,  and  see  Walden  v.  Dudley,  49  Mo.  419  (1872). 

^  By  virtue  of  §  13  of  the  treaty  of  1827  between  the  United  States  and 
Sweden  and  Norway,  8  U.  S.  Statutes,  346-352. 


994 


TELLEFSEN    V.    FEE. 


in  acting  according  to  its  tenor,  even  if  irregularities  making  the 
process  voidable  have  previously  occurred.  Savacool  v.  Boughton, 
5  Wend.  170;  Earl  v.  Camp,  16  Wend.  562;  Ela  v.  Shepard,  32  N. 
H.  277;  Hoivard  y.  Proctor,  7  Gray,  128;  Dzvinnels  v.  Boynton,  3 
Allen,  310;  Chase  V.  Ingalls,  97  Mass.  524;  Hubbard  v.  Garfield,  102 
Mass.  72;  Bergen  v.  Hayward,  102  Mass.  414;  Rawson  v.  Spencer, 
113  Mass.  40;  Chesebro  v.  Barme,  163  Mass.  79,  82  ;  Mines  v.  Cham- 
bers, 29  Minn.  7;  Hann  v.  Lloyd,  21  Vroom,  i. 

Where,  however,  the  process  is  void  on  its  face,  the  officer  is 
not  protected.  Clark  v.  Woods,  2  Exch.  395.  Pearce  v.  Atwood, 
13  Mass.  324.  Eames  v.  Johnson,  4  Allen,  382.  Thurston  v.  Adams, 
41  Maine,  419.  Harzvood  v.  Siphers,  70  Maine,  464.  Brozvn  v. 
Howard,  86  Maine,  342.  Rosen  v.  Fischel,  44  Conn.  371.  Frasier 
V.  Turner,  76  Wis.  562.  Sheldon  v.  //i//,  33  Mich.  171.  Poidk  v. 
S locum,  3  Blackf.  421. 

An  officer  is  bound  to  know  the  law,  and  to  know  the  juris- 
diction of  the  court  whose  officer  he  is ;  if,  therefore,  he  does  an 
act  in  obedience  to  a  precept  of  the  court,  and  the  court  has  no 
jurisdiction  in  the  matter,  either  because  the  statute  under  which 
the  court  acted  is  unconstitutional,  or  there  is  a  want  of  jurisdiction 
for  any  other  reason,  it  would  seem  that  the  officer  is  not  protected. 
There  are  many  authorities  to  this  effect.  Fisher  v.  McGirr,  i 
Gray,  i,  45.  Warren  v.  Kelley,  80  Maine,  512.  Batchelder  v.  Cur- 
rier, 45  N.  H.  460.  Thurston  v.  Martin,  5  Mason,  497.  Campbell 
V.  Sherman,  35  Wis.  103.  Sumner  V.  Beeler,  50  Ind.  341.  The 
Marshalsea,  10  Rep.  68  b.  Crepps  v.  Durden,  Cowp.  640.  Brown 
V.  Compton,  8  T.  R.  424.     Watson  v.  Bodcll,  14  M.  &  W.  57.^ 

Whether  this  doctrine  applies  to  a  case  like  the  present,  where 
the  court  had  general  jurisdiction  over  the  subject-matter,  but  no 
jurisdiction  over  the  particular  controversy  between  the  parties, 
and  no  jurisdiction  over  their  persons,  we  need  not  decide,  because 
on  the  facts  in  this  case  we  are  of  opinion  that  the  officer  may  be 
held  liable. 

He  was  informed  before  making  the  arrest  that  the  vessel  was 
a  Norwegian  vessel,  and  the  captain  of  the  vessel  a  Norwegian,  and 
that  the  claim  of  Johnson  would  be  adjusted  at  the  consulate  of  the 
Kingdom  of  Sweden  and  Norway.  Being  informed  of  the  facts, 
he  was  bound  to  know  the  law,  that  the  court  had  no  jurisdiction 
over  the  person  of  the  captain  or  the  subject-matter  of  the  action. 
S Prague  v.  Bir chard,  i  Wis.  457,  464,  469.  Grace  v.  Mitchell,  31 
Wis.  533,  539,  545.    Leachman  v.  Dougherty,  81  111.  324,  ^^y,  328.^ 

There  are,  without  doubt,  cases  which  lay  down  a  more  strin- 
gent rule,  and  say  that  the  officer  need  not  look  beyond  his  precept, 
and  is  not  bound  to  take  notice  of  extrinsic  facts ;  but  all  of  these 
are  cases  which  are  distinguishable  from  the  case  at  bar.  The  lead- 
ing case  on  this  subject  is  People  v.  Warren,  5  Hill  (N.  Y.)  440. 
The  defendant  was   indicted   for  assaulting  an   officer.     The  in- 


^  Note  that  in  all  of  these  cases  lack  of  jurisdiction  was  apparent  on  the 
face  of  the  process. 

*See  Gould,  C.  J.  in  Ticrncy  v.  Frazicr,  57  Tex.  437  (1882),  p.  440. 


I 


TELLEFSEN    V.    FEE.  995 

spectors  of  an  election  issued  a  warrant  to  a  constable  for  the  arrest 
of  the  defendant,  for  interrupting  the  proceedings  at  the  election 
by  disorderly  conduct  in  the  presence  of  the  inspectors.  The  de- 
fendant offered  to  show  that  he  had  not  been  in  the  presence  of 
the  inspectors  at  any  time  during  the  election,  and  that  the  con- 
stable knew  it.  This  was  held  to  be  rightly  excluded.  The  opinion 
is  per  curiam,  and  is  very  brief.  While  it  says  that  the  inspectors 
had  no  jurisdiction  of  the  subject-matter,  yet  the  clear  meaning  is, 
that,  if  the  defendant  was  not  in  their  presence,  they  acted  in  ex- 
'cess  of  their  jurisdiction.  Knowledge  by  an  officer  that  a  man  was 
innocent  would  of  course  be  no  excuse  for  assaulting  the  officer, 
if  he  arrested  the  man  upon  a  warrant  from  a  court  of  competent 
jurisdiction.  An  officer  in  a  criminal  case  is  obliged  to  obey  his 
warrant,  whatever  his  knowledge  may  be.  This  disposes  also  of  the 
case  of  State  v.  Weed,  21  N.  H.  262. 

Several  cases  have  been  called  to  our  attention  in  which  there 
are  dicta  to  the  effect  that  an  officer  is  not  bound  to  look  beyond  his 
precept,  even  if  he  has  knowledge  that  the  court  has  no  jurisdiction  ; 
but  an  examination  of  these  cases  shows  that  the  facts  known  to 
the  officer  did  not  affect  the  jurisdiction  of  the  court,  but  related 
to  irregularities  in  the  prior  proceedings,  or  to  matters  merely  of 
defence  to  the  action.    See  cases  above  cited. 

Of  course,  where  the  court  has  jurisdiction  of  the  subject-mat- 
ter and  of  the  parties  to  an  action,  knowledge  on  the  part  of  the 
officer,  or  information  to  him  that  there  is  some  irregularity  in  the 
proceeding  can  make  no  difference.  Underzvood  v.  Robinson,  106 
Mass.  296.^  Nor  can  it  make  any  difference  that  the  officer  is  in- 
formed that  there  is  a  defence  to  the  action,  such  as  that  the  de- 
fendant has  a  receipt ;  Tzvitchell  v.  Shaw,  10  Cush.  46 ;  or  a  dis- 
charge in  insolvency ;  Wilmarth  v.  Burt,  7  Met.  257  f  or  that  the  de- 
fendant is  an  infant;  Gassier  v.  Fales,  139  oMass,  461.^ 

But  the  question  of  jurisdiction  is  a  more  serious  matter,  and 
if  facts  are  brought  to  the  attention  of  the  officer  about  which  he 
can  have  no  reasonable  doubt,  and  he  knows,  or  is  bound  to  know, 
that  on  these  facts  the  court  has  no  jurisdiction  of  the  controversy, 
he  may  well  be  held  to  proceed  at  his  peril. 

We  can  see  no  hardship  upon  the  officer  in  holding  him  respon- 
sible in  this  case  for  an  illegal  arrest  and  for  false  imprisonment. 
If  an  officer  has  reasonable  cause  to  doubt  the  lawfulness  of  an  ar- 


*  The  magistrate  who  took  the  affidavit  and  signed  the  certificate  as  at- 
torney for  the  plaintiff  made  out  the  writ  and  it  was  held  that  the  officer  was 
not  bound  by  his  familiarity  with  the  magistrate's  writing  to  take  notice  of 
resulting  invalidity  of  the  writ. 

^  Twitchell  v.  Shaw  and  IVitmarch  v.  Burt  are  relied  upon  by  Sheldon,  J. 
in  Leachnian  v.  Dougherty,  as  authority  for  his  dissent  therein. 

^Accord:  O'Shanghncssy  v.  Baxter,  121  ]Mass.  515  (1877),  the  officer,  who 
arrested  the  person  named  in  and  intended  by  the  writ  of  execution,  knew  that 
the  note  on  which  the  action  was  brought  was  signed  by  another  person  of 
the  same  name;  Rice  v.  Miller,  70  Tex.  613  (1888),  sheriff  attaching  goods 
knew  the  insufficiency  of  the  original  cause  of  action  and  that  it  had  been 
brought  maliciously;  see  also,  Woods  v.  Davis,  34  N.  H.  328  (1857),  arrest  of 
person  privileged  therefrom,  semble. 


996 


TELLEFSEN    Z'.    FEE. 


rest,  he  may  demand  from  the  plaintiff  a  bond  of  indemnity,  and 
so  save  himself  harmless.  Marsh  v.  Gold,  2  Pick.  285,  290.  We 
are  not  aware  that  this  case  has  ever  been  doubted ;  and  in  practice, 
bonds  of  indemnity  have  often  been  required. 

In  the  case  at  bar,  after  receiving  full  information,  he  chose 
to  proceed,  and,  in  defiance  of  the  treaty,  to  subject  the  subject  of  a 
foreign  nation  to  a  gross  indignity,  for  the  purpose  of  extorting 
money  from  him,  under  the  guise  of  a  precept  which  the  court  had 
no  jurisdiction  to  issue,  and  which  it  would  not  have  issued  had  the 
facts  been  before  it. 

We  approve  of  the  language  of  Mr.  Freeman  in  21  Am.  Dec. 
204,  where,  after  a  discussion  of  the  cases  bearing  upon  the  ques- 
tion of  the  liability  of  an  officer,  he  says:  "We  apprehend,  at  all 
events,  that  the  protection  of  process  cannot  so  far  extend  as  to 
protect  an  officer  who,  from  all  the  circumstances  of  the  case,  does 
not  appear  to  have  acted  in  good  faith,  and  whose  conduct  shows 
that  his  eyes  were  wilfully  closed  to  enable  him  not  to  see  and  know 
that  he  was  a  too  ready  instrument  in  the  perpetration  of  a  griev- 
ous wrong." 

In  the  opinion  of  a  majority  of  the  court,  the  instruction  re- 
quested should  have  been  given. 
Exceptions  sustained. 

Knowlton,  J.  It  seems  to  me  that  the  opinion  of  the  majority 
of  the  court  is  wrong  in  holding  that  the  defendant  was  bound  to  re- 
ceive statements  made  by  the  plaintiff  or  others  for  the  purpose  of 
determining  whether  he  could  lawfully  serve  a  writ  which  was  reg- 
ular in  form,  and  which  on  its  face  showed  a  case  within  the  juris- 
diction of  the  court.  The  exceptions  on  this  point  present  a  naked 
proposition  of  law,  and  raise  no  question  in  regard  to  the  good  faith 
of  the  defendant  in  performing  his  official  duty.  The  writ  which 
he  served  stated  an  ordinary  case  for  the  collection  of  a  debt.  An 
officer  is  bound  to  know  the  law,  even  to  the  extent  of  determining 
whether  a  statute  on  which  his  process  is  founded  is  or  is  not  con- 
stitutional. But  for  the  facts,  he  is  not  called  upon  to  take  the  testi- 
mony of  anybody  in  regard  to  anything  outside  of  the  statements 
contained  in  the  process,  nor  even  to  act  upon  what  he  believes  to 
be  his  own  knowledge.  The  jurisdiction  which  the  court  must  have 
in  order  to  justify  him  is  jurisdiction  of  the  case  stated  in  the  writ. 
It  may  turn  out  that  there  was  no  real  case  upon  which  to  issue  a 
writ,  and  that  the  prosecution  is  grossly  malicious,  or  that  there  is 
a  real  case  materially  different  from  that  stated,  and  which  does  not 
come  within  the  jurisdiction  of  the  court,  but  the  officer  is  not  bound 
to  inquire  into  matters  of  this  kind.  This  has  been  held  in  a  great 
many  cases  in  ^Massachusetts  and  elsewhere,  and  the  reasons  for  the 
rule  have  been  elaborately  stated  in  different  jurisdictions.  These 
reasons  seem  to  me  fully  to  cover  the  present  case.  Twitchell  v. 
Shaw,  10  Cush.  46.  Wilmarth  v.  Burt,  7  Met.  257.  Donahoe  v. 
Shed,  8  Met.  326.  Fisher  v.  McGirr,  i  Gray,  i,  45.  Clarke  v.  May, 
2  Gray,  410.  Chase  v.  Ingalls,  97  Mass.  524.  Underwood  v.  Rob- 
inson, 106  Mass.  296,  297.    Rawson  v.  Spencer,  113  Mass.  40,  46. 


BUCK  V.  coLnATii.  997 

Gassier  V.  Fales,  139  Mass.  461.  State  v.  Weed,  21  N.  H.  2G2. 
Batchelder  v.  Currier,  45  N.  H.  460.  Watson  v.  Watson,  9  Conn. 
140.  JVarren  v.  Kelley,  80  Maine,  512,  531.  Earl  v.  Camp,  16 
Wend.  562.  Webber  v.  Gaj;,  24  Wend.  485.  People  v.  Warren,  5 
Hill  (N.  Y.)  440.  //ann  v.  Lloyd,  21  Vroom,  i.  Taylor  v.  ^/^,r- 
ander,  6  Ohio,  144,  147.  Henline  v.  Reese,  54  Ohio  St.  599.  [Fo// 
V.  Trumbull,  16  Mich.  228,  234.'^ 

The  cases  in  Wisconsin  and  Illinois  cited  in  the  opinion  are  the 
only  ones  that  I  have  been  able  to  find,  after  considerable  investiga- 
tion, which  hold  a  different  doctrine.  On  the  authorities  cited  above 
I  am  unable  to  see  that  it  makes  any  difference  whether  the  outside 
information  communicated  to  the  officer,  if  taken  to  be  true,  would 
show  the  real  case  to  be  one  upon  which  such  a  precept  cannot  prop- 
erly be  issued,  because  it  comes  within  a  treaty  giving  exclusive  ju- 
risdiction to  another  tribunal,  or  would  show  the  precept  to  be  un- 
warranted for  any  one  of  numerous  other  causes.  That  the  de- 
fendant in  the  original  action  happens  to  be  a  captain  of  a  Nor- 
wegian ship,  and  to  owe  the  plaintiff  in  his  official  capacity,  gives 
him  a  privilege  of  which  he  may  or  may  not  avail  himself  to  take 
the  case  out  of  the  general  jurisdiction  of  the  court.  I  think  this 
fact  calls  for  the  application  of  the  same  principle  as  a  strictly  per- 
sonal privilege.  Indeed,  the  principle  of  the  case  seems  to  cover 
every  kind  of  external  fact  which  operates  to  take  away  a  jurisdic- 
tion that  appears  to  be  perfect  on  the  face  of  the  papers. 

It  has  been  held  that  an  officer  may,  if  he  chooses,  act  upon  his 
knowledge  or  information  of  actual  facts  which  show  that  the  court 
was  without  jurisdiction,  and  refuse  to  serve  the  writ.  Earl  v. 
Camp,  16  Wend.  562.  Henline  v.  Reese,  54  Ohio  St.  599.  But  this 
is  very  different  from  requiring  him,  at  his  peril,  to  determine  ques- ' 
tions  of  fact.     I  think  the  exceptions  should  be  overruled. 


BUCK  V.  COLBATH. 
Supreme  Court  of  the  United  States,  1865.    70  U.  S.  334. 

Colbath  sued  Buck  in  one  of  the  State  courts  of  Minnesota,  in 
an  action  of  trespass  for  taking  goods.  Buck  pleaded  in  defence, 
that  he  was  marshal  of  the  United  States  for  the  district  of  Min- 
nesota, and  that  having  in  his  hands  a  writ  of  attachment  against 
certain  parties  whom  he  named,  he  levied  the  same  upon  the  goods, 
for  taking  which  he  was  now  sued  by  Colbath.  But  he  did  not  aver 
that  they  zvere  the  goods  of  the  defendants  in  the  ivrit  of  attacJiment. 

On  the  trial  Colbath  made  proof  of  his  ownership  of  the  goods, 
and  Buck  relied  solely  on  the  fact  that  he  zvas  marshal  and  held  the 
goods  under  the  writ  in  the  attachment  suit. 

The  court  refused  to  instruct  the  jury  that  the  defence  thus  set 


^Accord:  Tierney  v.  Fracier,  57  Tex.  437  (1882),  facts  closelv  simHar 
to  Twitchell  v.  Shazv;  Rainey  v.  State,  20  Tex.  App.  455  (1886),  d'efects  in 
affidavits  and  bond  making  a  writ  of  attachment  void  ;  Marl;s  V.  Sullivan,  9 
Utah  12  (1893)  ;  and  see  Bird  v.  Perkins,  33  Mich.  28  (1875). 


ggS  BUCK   f.    COLBATH, 

Up  was  a  sufficient  one;  and  the  plaintiff  had  a  verdict  and  judg- 
ment. The  judgment  was  affirmed  on  error  in  the  Supreme  Court 
of  Minnesota,  and  the  defendant  brought  the  case  here  under  the 
25th  section  of  the  Judiciary  Act. 

Mr.  Justice  Miller.  How  far  the  courts  are  bound  to  inter- 
fere for  the  protection  of  their  own  officers  is  a  question  not  dis- 
cussed in  the  case  of  Freeman  v.  Howe,^  but  which  demands  a  pass- 
ing notice  here.  In  its  consideration,  however,  we  are  reminded  at 
the  outset,  that  property  may  be  seized  by  an  officer  of  the  court 
under  a  variety  of  writs,  orders,  or  processes  of  the  court.  For  our 
present  purpose,  these  may  be  divided  into  two  classes : 

1.  Those  in  which  the  process  or  order  of  the  court  describe 
the  property  to  be  seized,  and  which  contain  a  direct  command  to 
the  officer  to  take  possession  of  that  particular  property.  Of  this 
class  are  the  writ  of  replevin  at  common  law,  orders  of  sequestra- 
tion in  chancery,  and  nearly  all  the  processes  of  the  admiralty  courts, 
by  which  the  res  is  brought  before  it  for  its  action. 

2.  Those  in  which  the  officer  is  directed  to  levy  the  process 
upon  property  of  one  of  the  parties  to  the  litigation,  sufficient  to 
satisfy  the  demand  against  him,  without  describing  any  specific 
property  to  be  thus  taken.  Of  this  class  are  the  writ  of  attachment, 
or  other  mesne  process,  by  which  property  is  seized  before  judg- 
ment to  answer  to  such  judgment  when  rendered,  and  the  final 
process  of  execution,  elegit,  or  other  writ,  by  which  an  ordinary 
judgment  is  carried  into  effect. 

It  is  obvious  on  a  moment's  consideration,  that  the  claim  of  the 
officer  executing  these  writs,  to  the  protection  of  the  courts  from 
which  they  issue,  stands  upon  very  different  grounds  in  the  two 
classes  of  process  just  described.  In  the  first  class  he  has  no  discre- 
tion to  use,  no  judgment  to  exercise,  no  duty  to  perform  but  to  seize 
the  property  described.  It  follows  from  this,  as  a  rule  of  law  of 
universal  application,  that  if  the  court  issuing  the  process  had  juris- 
diction in  the  case  before  it  to  issue  that  process,  and  it  was  a  valid 
process  when  placed  in  the  officer.'s  hands,  and  that,  in  the  execution 
of  such  process,  he  kept  himself  strictly  within  the  mandatory  clause 
of  the  process,  then  such  writ  of  process  is  a  complete  protection  to 
him,  not  only  in  the  court  which  issued  it,  but  in  all  other  cayirts.- 

In  the  other  class  of  writs  to  which  we  have  referred,  tha  officer 
has  a  very  large  and  important  field  for  the  exercise  of  his  judgment 
and  discretion.  First,  in  ascertaining  that  the  property  on  which 
he  proposes  to  levy,  is  the  property  of  the  person  against  whom  the 
writ  is  directed ;  secondly,  that  it  is  property  which,  by  law,  is  sub- 

*  In  Freeman  v.  Howe,  24  How.  450  (U.  S.  1860),  it  had  been  decided  that 
a  United  States  marshal  having  levied  a  writ  of  attachment  in  an  action  in  a 
Federal  Court,  upon  goods  of  one  a  stranger  to  the  writ,  the  rightful  owner 
could  not  obtain  possession  of  them  by  a  writ  of  replevin  issued  by  a  State 
Court,  since  to  allow  it  would  lead  "to  endless  strife"  "between  courts  whose 
powers  are  derived  from  entirely  different  sources,  while  their  jurisdiction  is 
concurrent  as  to  the  parties  and  the  subject-matter  of  the  suit." 

^Accord:  As  to  the  seizing  of  the  very  property  named  in  writ  of  re- 
plevin, Watson  V.  Watson,  9  Conn.  140  (1832),  but  the  officer  is  liable  if  he 
seizes  property  not  named  therein,  Kane  v.  Hutchisson,  93  Mich.  488  (1892). 


V 

HALBERSTADT    V.    NEW    YORK    LIFE    INS.    CO.  999 

ject  to  be  taken  under  the  writ;  and  thirdly,  as  to  the  quantity  of 
such  property  necessary  to  be  seized  in  the  case  in  hand.  In  all  these 
particulars  he  is  bound  to  exercise  his  own  judgment,  and  is  legally 
responsible  to  any  person  for  the  consequences  of  any  error  or  mis- 
take in  its  exercise  to  his  prejudice.  He  is  so  liable  to  plaintiff,  to 
defendant,  or  to  any  third  person  whom  his  erroneous  action  in  the 
premises  may  injure.  And  what  is  more  important  to  our  present 
inquiry,  the  court  can  afford  him  no  protection  against  the  parties 
so  injured;  for  the  court  is  in  no  wise  responsible  for  the  manner 
in  which  he  exercises  that  discretion  which  the  law  reposes  in  him, 
and  in  no  one  else. 

In  the  case  before  us,  the  writ  under  which  the  defendant  justi- 
fied his  act  and  now  claims  our  protection,  belongs  to  this  latter 
class.  Yet  the  plea  on  which  he  relied  contains  no  denial  that  the 
property  seized  was  the  property  of  plaintiff",  nor  any  averment  that 
it  was  the  property  of  either  of  the  defendants  in  the  attachment 
suit,  or  that  it  was  in  any  other  manner  subject  to  be  taken  under 
the  writ. 

We  see  nothing  therefore  in  the  mere  fact  that  the  writ  issued 
from  the  Federal  court,  to  prevent  the  marshal  from  being  sued  in 
the  State  court,  in  trespass  for  his  own  tort,  in  levying  it  upon  the 
property  of  a  man  against  whom  the  writ  did  not  run,  and  on  prop- 
erty which  was  not  liable  to  it. 

Judgment  affirmed  with  costs.^ 


SECTION  4. 

Right  to  Institute  Legal  Proceedings  for  the  Punishment  of 
Crime  or  for  Private  Redress 


(a)  Malicious  prosecution. 


(1)   Institution  of  proceedings  and  their  termination. 

HALBERSTADT  v.  NEW  YORK  LIFE  INSURANCE  CO. 

Court  of  Appeals  of  New  York,  1909.     194  New  York  Reports,  1. 

Appeal,  by  permission,  from  an  order  of  the  Appellate  Divi- 
sion of  the  Supreme  Court  in  the  first  judicial  department,  entered 
May  8,   1908,  which  reversed  an  interlocutory  judgment  of   Spe- 

^  Sanderson  v.  Baker,  2  Wm.  Black.  832  (1771),  A's  goods  seized  on  a  ti 
fa.  against  B.;  Glasspoole  v.  Young,  9  B.  &  C.  696  (1829),  female  plaintiff's 
goods  seized  under  a  H.  fa.  against  one  M,  who  had  gone  through  a  form  of 
marriage  with  the  plaintiff.  She,  believing  the  marriage  valid  and  the  property 
in  the  goods  transferred  thereby  to  I\I.,  acquiesced  in  the  seizure.  It  was  held 
that  on  discovering  the  jnarriage  to  be  invalid,  she  might  maintain  trover 


•4 
lOOO  IIALBERSTADT   Z'.    NEW    YORK    LIFE    IXS.    CO. 

cial  Term  sustaining  a  demurrer  to  the  second  and  third  defenses 
of  the  answer  and  overruled  such  demurrer. 

The  action  is  brought  to  recover  damages  for  an  alleged  mali- 
cious prosecution  claimed  to  have  been  instituted  by  the  respond- 
ent against  the  appellant  in  Mexico.  It  is  in  the  complaint,  amongst 
other  things,  alleged  that  the  respondent  through  its  agent  in  the 
Criminal  Court  in  the  city  of  Mexico  charged  the  appellant  with 
the  crime  of  embezzlement  "and  thereupon  and  in  and  by  virtue  of 
said  charge  and  the  institution  of  said  criminal  proceedings  a  war- 
rant was  issued  by  said  court  for  the  arrest  of  the  plaintiff  (in  this 
action),"  and  that  thereafter  "the  said  criminal  proceedings  for 
the  punishment  of  said  plaintiff  were  dismissed  and  extinguished 
and  the  said  prosecution  was  thereby  wholly  determined  *  *  * 
in  favor  of  the  plaintiff." 

The  respondent,  by  its  second  defense,  which  is  challenged  here 
for  insufficiency,  alleged,  in  substance,  that  before  the  warrant  re- 
ferred to  in  the  complaint  could  be  served  upon  the  appellant  and 
before  he  could  be  apprehended,  "he  left  the  Republic  of  ^Mexico, 
and  thereby  continuously  remained  absent  '•'  *  *  and  by  such 
absence  avoided  being  arrested  under  such  w^arrant,  or  being  tried 
*  *  *  but  remained  absent  from  said  Republic  of  Alexico  for 
a  sufficient  period  of  time  to  enable  him  to  procure  the  dismissal 
of  said  proceedings  under  the  law  of  Mexico  on  account  solely  of 
the  lapse  of  time,"  and,  conversely,  that  said  criminal  proceedings 
"were  not  dismissed  on  account  of  a  determination  of  the  case  in 
favor  of  the  plaintiff  on  the  trial  thereof  on  the  merits,  nor  was  it 
dismissed  for  failure  to  prosecute  said  case  except  as  above  set 
forth,  nor  was  it  dismissed  on  account  of  any  withdrawal  of  the 
complaint." 

The  third  defense,  also  challenged,  (was  substantially  the 
same)  repeats  the  foregoing  allegations  and  alleges  that  "the  de- 
parture of  the  plaintiff  *  *  *  ^yas  for  the  purpose  of  avoiding 
arrest,  and  by  so  absconding  the  said  plaintiff"  did  avoid  arrest,"  and 
in  substance  that  he  did  so  for  the  purpose  and  with  the  result  of 
procuring  a  dismissal  of  the  criminal  proceedings  in  accordance 
with  the  laws  of  Mexico  on  account  of  the  lapse  of  time  .sipiie,  and 
"by  reason  of  the  premises  said  plaintiff  could  not  be  brought  to 
trial  and  was  never  tried  in  said  court  to  answer  said  charge." 

HiscocK^  J.  This  appeal  involves  interesting  questions  in  an 
action  for  malicious  prosecution  raised  by  demurrer  to  certain  af- 
firmative defenses  which  have  been  pleaded. 

against  the  sheriff;  North  v.  Peters,  138  U.  S.  271  (1890),  injunction  granted 
to  compel  sheriff  to  release  goods  and  restraining  him  from  further  levy 
thereon;  People  ex  rel.  Kellogg  v.  Schuvlcr,  4  Corns.  173  (N.  Y.  1850)  ;  Ball 
v.  Pratt,  36  Barb.  402  (N.  Y.  1862);  Heidenhcimer  v.  Sides,  67  Tex.  32 
(1886)  ;  and  see  Miller  v.  Commonwealth,  5  Pa.  294  (1847). 

So  an  officer  executing  a  warrant,  or  a  jailor  receiving  a  prisoner  from 
him,  is  bound  at  his  peril  to  arrest  the  person  named  therein,  Aaron  v.  Alex- 
ander, 3  Camp.  35  (1811)  ;  Griswold  v.  Scdgzvick,  6  Cow.  456  (N.  Y.  1826). 
1  Wend.  126  (1828)  ;  Mead  v.  Hazvs,  7  Cow.  332  (1827)  :  Miller  v.  Folcv,  28 
Barb.  630  (N.  Y.  1859)  ;  Hays  v.  Creary,  60  Tex.  445  (1883)  ;  Landrum  v. 
Wells,  7  Tex.  Civ.  App.  625  (1894). 


HALBERSTADT   V.    NEW    YORK    LIFE    INS.    CO.  lOOI 

The  responaent's  first  reply  to  the  appellant's  attack  upon  its 
answer  is  of  the  tu  qiioque  iiature,  it  insisting  that  the  complaint  is 
as  deficient  in  the  statement  of  a  good  cause  of  action  as  the  answej 
is  alleged  to  be  in  the  statement  of  a  good  defeiise^  i'his  conten- 
tion  is  based  upon  the  fact  that  the  complaint  does  not  allege  any 
act  subsequent  or  in  addition  to  the  mere  issuance  of  a  warrant  in 
the  criminal  proceeding  complained  of ;  does  not  allege  that  the  war- 
rant was  ever  executed  in  any  way  whatever,  or  that  the  appellant 
was  ever  brought  into  said  proceedings  either  by  force  of  process 
or  voluntary  appearance^  Therefore,  the  question  is  presented 
whether  the  mere  application  for  and  issuance  to  a  proper  officer 
for  the  execution  of  a  warrant  on  a  criminal  charge  may  institute 
and  constitute  such  a  prosecution  as  may  be  made  the  basis  of  a 
subsequent  civil  action  Iwthe  party  claimed  to  have  been  injured. 
IiTconsidering  this  questionwe  must  keep  in  mind  that  the  facts  al- 
leged in  the  complaint,  and  in  the  light  of  which  it  is  to  be  deter- 
mined, do  not  show,  as  the  answer  does,  that  the  defendant  in  those 
proceedings  was  beyond  the  jurisdiction  of  the  court. 

This  question  does  not  seem  to  have  been  settled  by  any  decision 
which  we  regard  as  controlling  on  us. 

The  respondent  cites  the  following  authorities  deciding  it  in 
the  negative:  Nezvfield  v.  Copperman  (Spl.  Term)  (15  Abb.  Pr. 
(N.  S.)  360)  ;  Lazvyer  v.  Loomis  (3  T.  &  C.  393)  ;  Cooper  v.  Ar- 
mour (42  Fed.  Repr.  215)  ;  Heyzvard  v.  Cuthbert  (4  McCord  (S.  C.) 
354)  ;  O'Driscoll  v.  McBurney  (2  Nott  &  I^IcCord  (S.  C.)  54)  ; 
Bartlett  V.  Christliff  (14  Atlantic  Repr.  518)  ;  Gregory  v.  Derby  (8 
C.  &  P.  749)  ;  Paul  V.  Fargo  (84  App.  Div.  9).^ 

The  case  last  cited  was  concerned  with  an  alleged  malicious 
prosecution  by  means  of  civil  process  and  what  was  there  said  must 
be  interpreted  with  reference  to  that  fact,  and  thus  interpreted  it 
is  not  applicable  here.  Of  the  other  cases,  only  two,  Heyzcard  v. 
Cuthbert  and  Cooper  v.  Armour,  considered  the  question  here  in- 
volved with  sufficient  thoroughness  to  require  brief  comment.  An 
examination  will  show  that  the  decision  in  each  of  them  rested  in 
whole  or  in  part  on  a  principle  not,  as  I  believe,  adopted  in  this 
state.  In  the  former  it  was  said  that  "The  foundaiiwi  of  this  sort 
of  action  is  the  wrong  done  to  the  plaintiff  by  the  direct  detention 
or  imprisonment  of  his  person."    As  I  think  we  shall  see  hereafter, 


^See  also,  Davis  v.  Sanders,  133  Ala.  275  (1901),  semble,  "an  averment 
of  the  issuance  of  process,  properly  describing  it,  and  the.  plaintiff's  arrest 
and  imprisonment  by  virtue  thereof,  is  essential  in  an  action  of  malicious 
prosecution."  In  Mitchell  V.  Donanski,  28  R.  I.  94  (1906),  the  defendant  ob- 
tained a  warrant  against  the  plaintiff  charging  him  with  conduct  not  consti- 
tuting any  crime,  the  warrant  was  never  served,  the  defendant  voluntarily 
directing  the  officer  not  to  serve  it,  dismissing  that  complaint  and  paying  the 
costs,  it  was  held  that  no  action  lay,  citing  Byne  v.  Moore,  5  Taunt.  187,  1 
Marsh.  12  (1813),  where  a  plaintiff,  who  proved  that  a  bill  of  indictment  was 
presented  to  the  grand  jury  and  not  found,  was  held  to  have  no  action  since 
he  proved  no  damage,  the  indictment  not  containing  scandal  nor  the  charge 
putting  the  plaintiff  to  any  expense.  But  in  Mitchell  v.  Donanski,  it  is  inti- 
mated, p.  97,  that  such  a  charge  of  a  criminal  offence,  actionable  per  se  (in 
slander)  or  putting  the  accused  to  special  damage  might  support  an  action. 


I002  HALBERSTADT   V.    NEW    YORK    LIFE    IXS.    CO. 

that  is  not  a  correct  statement  of  the  law  in  this  state.  In  the  other 
case  it  was  stated,  "The  only  inji  ry  sustained  by  the  person  accused, 
when  he  is  not  taken  into  custody,  and  no  process  has  been  issued 
against  him,  is  to  his  reputation;  and  for  such  an  injury  the  action 
of  libel  or  slander  is  the  appropriate  remedy,  and  would  seem  to  be 
the  only  remedy."  I  think  that  this  doctrine,  which  if  correct  would 
provide  an  adequate  remedy  outside  of  an  action  for  malicious 
prosecution  for  an  injured  party  in  a  case  where  no  warrant  had 
been  executed,  also  is  opposed  to  the  weight  of  authority  both  in 
this  state  and  elsewhere  hereafter  to  be  referred  to. 

The  authorities  holding  to  the  contrary  on  the  question  above 
stated,  and  that  the  execution  of  the  warrant  is  not  necessary  to 
lay  the  foundation  for  an  action  of  malicious  prosecution,  are :  Ad- 
dison on  Torts  (Vol.  2  (4th  Eng.  Ed.),  p.  478)  ;  Newell  on  Mali- 
cious Prosecution  (sect.  30)  ;  Stephens  on  Malicious  Prosecution 
(Am.  Ed.,  sect.  8)  ;  Stapp  v.  Partlozv  (Dudley's  Repts.  (Ga.)  176)  ; 
Clark  V.  Postan  (6  C.  &  P.  423)  ;  Feade  v.  Simpson  (2  111.  30)  ; 
Britton  v.  Granger  (13  Ohio  Cir.  Ct.  Repts.  281,  291)  ;  Holmes  v. 
Johnson  (Busbee's  L.  R.  (N.  C.)  44)  ;  Coffey  v.  Myers  (84  Ind. 

105). 

And  to  the  like  effect  in  the  absence  of  special  statutory  pro- 
visions is  Szvift  V.  Witchard  (103  Ga.  193). 

Thus  it  is  apparent,  as  before  stated,  that  there  is  no  control- 
ling decision  on  this  question  and  we  are  remitted  to  a  search  for 
some  general  considerations  which  may  be  decisive.  It  seems  to 
me  that  these  may  be  found  and  that  they  favor  the  view  that  a 
prosecution  may  be  regarded  as  having  been  instituted  though  "X' 
warrant  has  not  been  executed. 

The  first  one  of  these  considerations  is  found  in  the  rule  ap- 
plied in  civil  actions  and  proceedings  to  an  analogous  situation. 
There  it  has  many  times  been  held  that  the  mere  issue  of  various 
forms  of  civil  process  for  service  or  other  execution  is  sufficiently 
independent  of  statute  to  effect  the  commencement  of  a  case  or  pro- 
ceeding.- 

I  see  no  reason  why  a  similar  rule  should  be  applied  to  crim^ 
inal  proceedings,  at  least  for  the  purpose  of  such  an  action  as  this. 

Then  there  is  another  reason  resting  on  justice  which  seems  to 
me  to  lead  us  to  adopt  this  conclusion.  In  opposition  to  what  was 
said  in  the  South  Carolina  case  already  referred  to,  the  sole  foun- 
dation for  an  action  of  malicious  prosecution  is  not  "the  wrong  done 
to  the  plaintiff"  by  the  direct  detention  or  imprisonment  of  his  per- 
son." In  an  action  for  false  imprisonment  that  would  be  so.  But 
in  an  action  of  the  present  type,  the  substantial  injury  for  which 
damages  are  recovered  and  which  serves  as  a  basis  for  the  action 
may  be  that  inflicted  upon  the  feelings,  reputation  and  character 
by  a  false  accusation  as  well  as  that  caused  by  arrest  and  imprison^ 

-Citing  Carpenter  v.  Butterfield,  3  Johns.  Cases,  145  (N.  Y.  1802)  ;  Cheet- 
ham  V.  Lewis,  3  Johns.  42  (X.  Y.  1808)  ;  Bronson  v.  Earl,  17  Johns.  63  (N.  Y. 
1819)  ;  Ross  v.  Luther,  4  Cow.  158  (N.  Y.  1825)  ;  Mills  v.  Corbett,  8  How.  Pr. 
500  (S.  Y.  1853)  ;  Hancock  v.  Ritchie,  11  Ind.  48,  52  (1858)  ;  Howell  v.  Shep- 
ard,  48  Mich.  472  (1882)  ;  Webster  v.  Sharpe,  116  N.  Car.  466,  471  (1895). 


HALBERSTADT   V.    NEW    YORK    LIFE    INS.    CO.  IOO3 

ment.  This  element  "indeed  is  in  many  cases  the  gravamen  of  the 
action."  {Sheldon  v.  Carpenter,  4  N.  Y.  579,  580;  Woods  v.  Finnell. 
13  Bush  (Ky.)  Repts.  628;  Townsend  on  Slander,  sec.  420;  Wheel- 
er w  Hanson,  161  Mass.  370;  Gnndermann  v.  Bnschner,  73  111.  App. 
180;  Lawrence  v.  Hagerman,  56  111.  68;  Davis  v.  Seeley,  91  Iowa 

583-) 

But  no  matter  bow  ^^?l'iP_and  damaging  the  charge^ may__h£-m- 
a  criminal  proceeding  upon  which  a  warrant  may  be^issued,  damages 
for  the  inj_ury__ransed  thereby  can  not  underanyordinary_circum- 
cfgnT^pg  bp^r^ppvprpH^iti  an  actiou  for  libel  oF^latTdetT^ 


lerefore,  it  follows  that  a  person  who  has  most  grievously 
injured  another  by  falsely  making  a  serious  criminal  accusation 
against  him  whereon  a  warrant  has  been  actually  issued,  may  escape 
all  liability  by  procuring  the  warrant  to  be  withheld  unless  an  ac- 
tion for  malicious  prosecution  will  lie.  It  seems  to  me  that  under 
such  circumstances  we  should  hold  that  such  action  will  lie,  if  for 
no  other  reason  than  to  satisfy  that  principle  of  law  which  demands 
an  adequate  remedy  for  every  legal  wrong. 

Deciding,  therefore,  that  the  appellant's  complaint  does  state 
a  cause  of  action,  we  are  brought  to  the  direct  consideration  of  the 
respondent's  answer.  I  do  not  think  that  there  is  such  substantial 
difference  between  the  two  defenses  which  are  questioned  as  calls 
for  any  separate  treatment  of  them.  Liberally  construed,  as  the 
pleader  is  entitled  to  have  them  in  the  face  of  a  demurrer,  each  one 
amounts  to  this,  that  the  appellant  fled  from  Mexico  before  the 
warrant  could  be  served  on  him  for  the  purpose  of  avoiding  serv- 
ice, and  remained  out  of  the  country  and  beyond  the  jurisdiction 
of  the  court  for  such  a  length  of  time  that  the  criminal  proceeding 
was  finally  dismissed,  presumably  because  prosecution  was  not  and 
could  not  be  carried  on.  The  question  is  whether  a  dismissal  or 
discontinuance  of  a  criminal  proceeding  under  such  circumstances 
is  that  kind  of  a  termination  which  will  support  an  action  for  mali- 
cious prosecution.    If  it  is,  the  answers  are  bad ;  otherwise,  not.  , 

While  it  is  elementary  that  a  crimijTaLfiraeeeding  mast-^  ter- 
minated  before  an  action  for  malicious  prosecution  can  be  begun,* 


'Citing  Howard  v.  Thompson,  21  Wend.  319,  324  (N.  Y.  1839)  ;  JVoods  v. 
Whnan,  47  Hun  362,  364  (N.  Y.  1866)  ;  Sheldon  v.  Carpenter,  4  N.  Y.  579.  580 
(1851)  ;  Dale  v.  Harris,  109  Mass.  193  (1872)  ;  Gabriel  v.  McMnllin,  127  Iowa 
426  (1905)  ;  Hamilton  v.  Eno,  81  N.  Y.  116  (1880)  ;  Newell  on  Malicious  Pros- 
ecution, sec.  10.  » 

*  "Otherwise  he  might  recover  in  the  action  and  yet  be  convicted  in  the 
original  prosecution",  Fisher  v.  Bristow,  1  Douglas  215  (1779),  and  see  cases 
cited  in  note  to  Graves  v.  Scott,  2  L.  R.  A.  N.  S.  927  (1905),  pp.  927-928.- 
Therefore  the  statute  of  limitations  does  not  run  until  the  original  prosecu- 
tion is  terminated,  Rider  v.  Kite,  61  N.  J.  L.  8  (1897).  This  is  equally  so  in 
an  action  for  the  malicious  prosecution  of  civil  actions  and  for  the  same 
reason,  Bonney  v.  King,  103  111.  App.  601  (1902),  201  111.  47  (1903)  ;  Wilson 
V.  Hale,  178  Mass.  Ill  (1901).  But  if  the  nature  of  the  proceeding  is  such 
that  the  plaintiff  has  no  opportunity  to  make  a  defense  and  it  is  thus  impos- 
sible for  the  proceedings  to  terminate  in  his  favor,  as  where  the  proceedings 
are  ex  parte  and  the  court  or  magistrate  has  no  discretion  but  acts  as  it  were 
ministerially  upon  the  defendant's  complaint,  an  action  will  lie  if  the  pro- 
ceedings are  without  probable  cause  and  malicious,  Steward  v.  Gromett.  7  C- 


I004  HALBERSTADT   V.    NEW    YORK    LIFE    INS.    CO, 

there  has  been  much  discussion  of  the  nature  of  this  necessary  ter- 
mination. The  best  idea  of  what  is  essential  may  be  gathered  by 
reference  to  some  pertinent  authorities. 

In  Wilkinson  v.  Hozvcll  (22  E.  C.  L.  R.  368;  i  M.  &  M.  N.  P. 
495)  it  appeared  that  the  court  in  the  criminal  proceeding  com- 
plained of  had  ordered  a  stet  processus  with  the  consent  of  the  par- 
ties. It  was  said  by  Lord  Tenterden,  "That  the  termination  (of  the 
criminal  proceeding)  must  be  such  as  to  furnish  prima  facie  evi- 
dence that  the  action  was  without  foundation,"  and  that  the  termina- 
tion in  question  did  not  furnish  any  such  evidence.^ 

In  McCormick  v.  Sisson  (7  Cowen,  715,  717)  criminal  proceed- 
ings were  suspended  because  the  parties  declared  that  they  had  set- 
tled all  matters  of  difficulty  between  them.  The  court  held  that 
there  was  no  proper  termination  of  the  proceeding,  saying:  "It  is 
essential  that  the  plaintifif  prove  he  has  been  acquitted.  The  dis- 
charge must  be  in  consequence  of  the  acquittal.  The  action  can  not 
be  sustained  unless  the  proceedings  are  at  an  end  b}'  reason  of  an 
acquittal." 

In  Gallagher  v.  Stoddard  (47  Hun,  loi)  it  appeared  that  the 
plaintiff,  after  being  arrested,  paid  the  officer  having  him  in  custody 
some  money,  which  was  receipted  for  by  the  defendant  and  the  of- 
ficer, and  he  was  thereupon  discharged.  It  was  held  that  this  was 
not  enough. 

In  Atzvood  V.  Beirne  (73  Hun,  547)  it  appeared  that  there  had 
been  cross-criminal  proceedings  and  it  was  arranged  that  the  re- 
spective complainants  should  be  absent  on  the  days  to  which  the 
proceedings  were  adjourned  and  each  complaint  thus  fell  for  want 
of  prosecution.  It  was  held  that  this  was  not  a  sufficient  termina- 
tion to  support  a  subsequent  action  for  malicious  prosecution. 

In  Jones  v.  Foster  (43  App.  Div.  33,  35)  it  was  said  that  the 
theory  on  which  such  an  action  as  this  is  sustainable  "is  that  the 
proceeding  out  of  which  the  action  arose  has  terminated  success- 
fully to  the  defendant,  exonerating  him  from  the  charge  made." 

In  Leyenbergcr  v.  Paul  (40  111.  App.  516)  it  was  established 
that  there  had  been  an  adjournment  of  the  criminal  proceedings  to 
a  certain  day  and  that  the  attorney  for  the  defendant  in  that  pro- 

B.  (N.  S.)  191  (1859),  peace  warrant  issued  on  information  before  a  magis- 
trate that  the  plaintiff  had  used  threatening  language,  Hyde  v.  Greiich,  62 
Md.  577  (1884), —  aliter,  where  the  plaintiff  was  held  to  bail  to  keep  the  peace 
after  a  hearing.  Hill  v.  Egan,  160  Pa.  St.  119  (1894),—  Steward  v.  Gromett,  7 

C.  B.  (N.  S.)  191  (1859), —  an  attachment  issued  upon  the  defendant's  oath 
that  the  plaintiff  had  left  the  country  with  intent  to  defraud  his  creditors ; 
Blimp  v.  Belts,  19  Wend.  421  (N.  Y.  1838),  So  in  McSwain  v.  Edge,  6  Ga. 
App.  9  ( 1909) ,  it  was  held  that  an  action  would  lie  by  a  tenant  evicted  under 
a  summary  warrant  obtained  ex  parte  by  the  defendant,  his  landlord,  there 
being  no  way  after  eviction  for  arresting  the  process  or  for  forming  an  issue 
thereon.  But  the  mere  fact  that  there  is  no  right  of  appeal  from  a  conviction 
by  a  justice  after  hearing  does  not  warrant  an  indirect  review  of  the  con- 
viction in  an  action  of  malicious  prosecution,  Basebe  v.  Matthews,  L.  R.  2  C. 
P.  684  (1867). 

°  He  also  says,  "If  this  should  be  allowed,  the  defendant  would  be  de- 
ceived by  the  consent,  as  without  that  he  would  certainly  have  gone  on  with 
the  action,  and  might  have  shown  a  foundation  for  it. 


HALBERSTADT   V.    NEW    YORK    LIFE    INS.    CO.  IOO5 

ceeding  in  violation  of  his  agreement  went  before  the  magistrate 
and  procured  the  dismissal  of  the  charge  for  want  of  prosecution. 
It  was  held  that  this  was  not  sufficient,  the  court  saying:  "But  a 
nolle  prosequi  by  consent,  or  by  way  of  compromise,  or  where  such 
exemption  from  further  prosecution  has  been  demanded  as  a  right, 
or  sought  for  as  a  favor,  is  not  enough.  *  *  *  fhe  principle 
of  the  cases  is  that  the  discharge  or  acquittal  must  be  by  judicial 
action  under  such  circumstances  as  that  the  party  accused  has  not 
avoided  or  prevented  judicial  investigation." 

And  it  has  been  held  in  many  different  jurisdictions  under 
varying  circumstances  that  the  entry  of  a  nolle  prosequi  by  the 
prosecuting  officer  or  the  termination  of  a  criminal  proceeding  by 
the  procurement  of  the  party  prosecuted  or  by  his  consent  or  by  way 
of  compromise  is  not  such  a  termination  of  a  prosecution  as  will 
enable  the  party  thereby  discharged  to  maintain  an  action  for  ma- 
licious prosecution.  (Langford  v.  B.  &  A.  R.  R.  Co.,  144  Mass. 
431 ;  Russell  v.  Morgan,  24  R.  I.  134;  Craig  V.  Ginn,  94  Am.  State 
Repts.  yy;  Welch  v.  Cheek,  115  N.  C.  310;  Marcus  v.  Bernstein, 
117  N.  C.  31 ;  Holliday  v.  Holliday,  123  Cal.  26;  Rosenberg  v.  Hart, 
33  111.  App.  262;  Marbourg  v.  Smith,  11  Kans.  554.)® 

From  all  of  these  authorities  added  to  others  which  are  more 
familiar  I  think  two  rules  fairly  may  be  deduced.  The  first  one  is 
that  where  a  criminal  proceeding  has  been  terminated  in  favor  of 
the  accused  by  judicial  action  of  the  proper  court  or  official  in  any 
way  involving  the  merits  or  propriety  of  the  proceeding  or  by  a 
dismissal  or  discontinuance  based  on  some  act  chargeable  to  the 
complainant  as  his  consent  or  his  withdrawal  or  abandonment  of 
his  prosecution,  a  foundation  in  this  respect  has  been  laid  for  an 
action  of  malicious  prosecution.^    The  other  and  reverse  rule  is  that] 

°  Accord:  Emery  v.  Ginnan,  24  111.  App.  65  (1887)  ;  Wickstrom  v.  Swan- 
son,  107  Minn.  482  (1909)  ;  Baxter  v.  Gordon,  Ironsides  and  Fares,  13  Out. 
L.  R.  598  (1906)  ;  but  see  Craig  v.  Hasell,  4  A.  &  E.  (N.  S.)  481  (1843).  So 
where  one  charged  with  embezzlement  is  discharged  on  payment  of  the 
money  which  he  was  charged  with  taking,  Fadner  v.  Filer,  27  111.  App.  506 
(1888)  ;  but  see  White  v.  Int.  Book  Co.  and  Darley  v.  Donath,  infra.  Note  8. 

A  discontinuance  or  abandonment  of  a  civil  suit  upon  a  compromise  or 
payment  of  the  amount  claimed  is  not  a  termination  of  it,  Sartzvell  v.  Parker, 
141  Mass.  405  (1886)  ;  Rounds  v.  Humes,  7  R.  I.  535  (1863)  ;  Forster  v.  Orr, 
17  Ore.  447  (1889). 

But  the  accused,  though  present  in  person  or  by  attorney,  need  not  object 
to  the  proceedings  being  dropped,  Lamprey  v.  Hood,  7Z  N.  H.  384  (1905),  he 
or  his  counsel  may  even  protest  against  his  being  held  any  longer  on  the 
charge  and  so  lead  the  state's  attorney  to  enter  a  nolle  prosequi,  Driggs  v. 
Burton,  supra.  Where  the  magistrate  refuses  to  consider  an  agreement  to 
settle  a  felony,  but  hears  the  case  and  discharges  the  accused,  an  action  for 
malicious  prosecution  was  held  to  lie,  Van  Voorhes  v.  Leonard,  1  Thomps.  & 
C.  148  (N.  Y.  1873). 

'  It  is  not  necessary  that  the  termination  shall  be  such  as  to  preclude 
another  prosecution  for  the  same  offense,  it  is  enough  that  it  is  a  final  deter- 
mination of  the  present  proceeding,  "so  that  it  can  not  be  revived  but  the 
prosecutor  if  he  wishes  to  proceed  further,  must  institute  proceedings  de 
novo,"  Graves  v.  Scott,  104  Va.  2,72  (1905);  Vinal  v.  Core,  18  W.  Va.  1 
(1881)  ;  Leyenberger  v.  Paul,  40  111.  App.  516  (1890). 

But  if  the  prosecutor,  notwithstanding  that  a  warrant  is  dismissed  by  a 
magistrate,  proceeds  with  the  prosecution  as  by  procuring  an  indictment  to 


I006  HALBERSTADT    V.    NEW    YORK    LIFE    INS.    CO. 

where  the  proceeding  has  been  terminated  without  regard  to  its 
merits  or  propriety  by  agreement  or  settlement  of  the  parties  or 
solely  by  the  procurement  of  the  accused  as  a  matter  of  favor  or 
as  the  result  of  some  act,  trick  or  device  preventing  action  and  con- 
sideration by  the  court,  there  is  no  such  termination  as  may  be 


be  presented  to  the  grand  jury,  which  prosecution  is  still  pending  or  has 
terminated  in  the  conviction  of  the  accused,  such  subsequent  prosecution  is 
held  in  Hartshorn  v.  Smith,  104  Ga.  235  (1898),  to  be  in  effect  a  continuation 
of  the  original  prosecution;  accord:  Schippel  v.  Norton,  38  Ivans.  567  (1888), 
prosecution  before  a  justice  of  the  peace  withdrawn  by  district  attorney 
and  the  same  day  a  new  prosecution  begun  in  the  district  court;  Hales  v. 
Raines,  162  Mo.  App.  46  (1911),  involuntary  non-suit  suffered  in  a  civil  case 
and  a  second  action  thereafter  begun  for  same  cause,  and  see  Rogers  v. 
Miillins,  26  Tex.  Civ.  App.  250  (1901). 

The  earlier  English  cases  required  that  there  should  be  an  acquittal  by 
a  jury  after  a  trial  on  the  merits,  Pantsune  v.  Marshall,  Sayer  162  (1754), 
Morgan  v.  Hughes,  2  T.  R.  225  (1788),  or  at  least  a  determination  in  favor 
of  the  accused  upon  the  merits,  Goddard  v.  Smith,  6  Mod.  261  (1704),  1 
Salk.  21,  2  Salk.  456,  3  Salk.  245,  as  to  the  present  state  of  the  English  law 
see  Clerk  and  Lindsell  on  Torts,  6th  ed.  700-702  (1912),  citing  Ddegal  v. 
Highlcy,  3  Bing.  N.  C.  950  (1837),  and  Craig  v.  Hasell,  4  A.  &  E,  (N.  S.) 
481  (1843).  Dicta  to  the  same  effect  occur  in  many  early  American  cases, 
Monroe  v.  Maples,  1  Root  553  (Conn.  1793)  ;  Williams  v.  Woodhouse,  3  Dev. 
.Law  257  (N.  Car.  1831);  Hibbing  v.  Hyde,  50  Cal.  206  (1875);  Scott  and 
Bovd  v.  Shelor,  28  Grat.  891'  (Va.  1877),  and  cases  cited  in  the  note  to 
Graves  v.  Scott  in  2  L.  R.  A.  (N.  S.)  927,  pp.  930-932. 

But  the  later  American  cases  do  not,  as  a  rule,  require  an  acquittal  after 
a  trial  on  the  merits.  Where  the  accused  is  discharged  by  the  court  having 
jurisdiction,  whether  a  trial  or  appellate  court  or  a  committing  magistrate 
or  a  justice  of  the  peace,  this  is  generally  held  a  sufficient  termination  of  the 
case,  though  it  is  sometimes  held  that  the  plaintiff  must  show  that  the  prose- 
cution has  been  thereafter  abandoned.  Page  v.  Citizen's  Banking  Co.,  Ill 
Ga.  73  (1900)  ;  Dreyfus  v.  Aul,  29  Nebr.  191  (1890)  ;  Waldron  v.  S perry,  53 
W.  Va.  116  (1903)  ;  and  see  Hartshorn  v.  Smith  and  Schippel  v.  Morton, 
supra. 

The  charge  may  be  dismissed  and  the  accused  discharged  by  the  court 
itself,  Delcgal  v.  Highley,  supra;  Findley  v.  Buchanan,  1  Blackf.  12  (Ind. 
1818)  ;  Sayles  v.  Briggs,  4  Mete.  421  (Mass.  1842)  ;  Rider  v.  Kite,  61  N.  J. 
L.  8  (1897)  ;  Secor  v.  Babcock,  2  Johns.  203  (N.  Y.  1807)  ;  Mentel  v.  Hip- 
pclv,  165  Pa.  St.  558  (1895),  and  see  Zebley  v.  Storey,  117  Pa.  St.  478 
(1888),  semble;  Graves  v.  Scott,  104  Va.  372  (1905),  and  cases  cited  in  the 
note  thereto  in  2  L.  R.  A.  (N.  S.)  927,  at  pp.  933-935,  either  after  a  hear- 
ing on  the  merits,  Cascarella  v.  National  Grocer  Co.,  151  Mich.  15  (1908),  or 
without  a  hearing;  Smith  V.  Clark,  2,7  Utah  116  (1910);  McDonald  v.  Na- 
tional Art  Co.,  125  N.  Y.  S.  708  (1910)  ;  but  see  Whaley  v.  Lawton,57  S.  Car. 
256  (1899),  though  no  action  lies  where  the  magistrate,  after  holding  the  ac- 
cused to  bail,  illegally  discharged  him  without  bail,  Hill  v.  Egan,  160  Pa.  St. 
119   (1894). 

The  accused  may  be  discharged  by  order  of  a  court  after  a  grand  jury 
had  ignored  the  bill  of  indictment,  Graves  v.  Daivson,  130  Mass.  78  (1881)  ; 
Stewart  v.  Thompson,  51  Pa.  St.  158  (1865)  ;  Taylor  v.  Dominick,  36  S.  Car. 
368  (1891)  ;  Knecland  v.  Spitzka,  10  Jones  &  Spencer  470  (N.  Y.  1877)  ;  Hower 
V.  Lezvfon,  18  Fla.  328  (1881),  aliter,  in  some  jurisdictions  where  though  the 
grand  jury  has  ignored  the  bill,  there  has  been  no  discharge  by  order  of  the 
court,  Buller,  J.  in  Morgan  v.  Hughes,  2  T.  R.  225  (1788);  Thomas  v.  De 
Graff enreid,  2  Nott  &  McC.  143  (S.  Car.  1819)  ;  Knott  v.  Sargent,  US  Mass. 
95  (1878);  contra.  Potter  v.  Casterline,  41  X.  J.  L.  22  (1879),  and  Weisncr 
V.  Hansen,  81  N.  J.  L.  601  (1911);  Wells  v.  Parker,  76  Ark.  41  (1905); 
Schoonover  v.  Myers,  28  111.  308  (1862)  ;  Horn  v.  Sims,  92  Ga.  421  (1893)  ; 
Auer  v.  Mauser,  6  Pa.  S.  C.  618  (1898),  but  mere  failure  to  find  a  true  bill 


HALBERSTADT   Z'.    NEW    YORK    LIFE   INS.    CO.  IOO7 

availed  of  for  the  purpose  of  such  an  action.  The  underlying  dis- 
tinction which  leads  to  these  different  rules  is  apparent.  In  ont 
case  the  termination  of  the  proceeding  is  of  such  a  character  as  es- 
tablishes or  fairly  implies  lack  of  a  reasonable  ground  for  his  prose-} 
cution.  In  the  other  case  no  such  implication  reasonably  follows] 
(Townsend  on  Slander,  section  423.) 

When  we  apply  these  rules  to  the  defenses  which  have  been 


at  the  first  term  of  the  court  is  not  enough,  P'on  Koehring  v.  Witte,  15  Tex. 
Civ.  App.  646  (1897). 

Or  he  may  be  discharged  after  an  indictment  has  been  quashed,  Hays 
V.  Blizzard,  30  Ind.  457  (1868),  though  on  motion  of  counsel  for  the  ac- 
cused, Lytton  V.  Baird,  95  Ind.  349  (1883)  ;  McKensie  v.  M.  P.  R.  Co.,  24  Mo. 
App.  392  (1887),  or  on  the  refusal  of  the  prosecution  to  give  security  for 
costs,  Casebeer  v.  Rice,  18  Nebr.  203  (1885). 

The  accused  may  be  discharged  because  the  prosecutor  abandons  the 
prosecution  and  withdraws  the  complaint,  Brown  v.  Randall,  36  Conn. 
56  (1869)  ;  Clegg  v.  IVaterbury,  88  Ind.  21  (1882)  ;  Beemer  v.  Beemer,  9  Ont. 
L.  R.  69  (1904);  Shaul  v.  Brozmi,  28  Iowa  37  (1869)  ;  Bell  v.  Mathews,  37 
Kans.  686  (1887),  or  because  the  State  Attorney  fails  to  appear  or  to  proceed 
with  the  prosecution,  Swensgaard  v.  Davis,  33  Minn.  368  (1885),  especially 
when  no  further  steps  are  taken  to  press  the  charge.  Fay  v.  O'Neill,  36  N.  Y. 
11  (1867)  ;  Waldron  v.  Sperry,  53  W.  Va.  116  (1903),  or  requests  the  court  to 
dismiss  the  charge,  South.  Car  &  Foundry  Co.  V.  Adams,  131  Ala.  147 
(1901)  ;  Welch  v.  Cheek,  115  N.  Car.  310  (1894). 

An  abandonment  of  or  a  failure  to  proceed  with  the  prosecution  is 
held  in  many  cases  to  be  sufficient  though  no  action  is  taken  by  the  court 
either  in  discharging  the  accused  or  releasing  his  securities  or  giving  leave 
to  the  prosecutor  to  abandon  the  prosecution,  Craig  v.  Ginn,  3  Penn.  117 
(Del.  1901);  Green  v.  Cochran,  43  Iowa  544  (1876);  Lcever  v.  Hamill,  57 
Ind.  423  (1877);  Pharis  v.  Lambert,  1  Sneed  228  (Tenn.  1853);  contra, 
Clark  V.  Cleveland,  6  Hill  344  (N.  Y.  1844)  ;  Apgar  v.  Woolston,  A3  N.  J.  L.  57 
(1881);  Holmes  v.  Johnson,  Busbee  44  (N.  Car.  1852);  Rice  v.  Ponder,  7 
Ire.  L.  390  (N.  Car.  1847)  ;  Murray  v.  Lackey,  2  Murphy  368  (N.  Car.  1818)  : 
Lucck  V.  Heisler,  87  Wis.  644  (1894).  and  Gillespie  v.  Hudson,  11  Kans.  163 
(1893)  ;  Strehlow  v.  Pcttit,  96  Wis.  22  (1897),  but  see  King  v.  Johnston,  81 
Wis.  578  (1892);  Walker  v.  Curran,  1  Phila.  113  (Pa.  1850),  but  compare 
Murphy  v.  Moore,  supra. 

Some  of  the  earlier  cases  state  in  general  terms  that  a  plaintiff  cannot 
maintain  an  action  for  a  malicious  criminal  prosecution  by  indictment,  by  show- 
ing that  the  prosecution  has  been  determined  by  a  nolle  prosequi,  Shaw,  C.  J. 
in  Parker  v.  Farley,  10  Cush.  279  (Mass.  18521;  Goddard  v.  Smith,  supra; 
though  a  plea  of  not  guilty  accepted  by  the  Attorney-General  was  in  the 
latter  case  said  to  be  sufficient;  the  tendency  of  the  later  cases  is,  how- 
ever, to  hold  that,  when  the  accused  was  thereupon  discharged,  there  is  a 
sufficient  termination.  Graves  v.  Dawson,  133  Mass.  419  C1882),  scmble : 
Stanton  V.  Hart,  27  Mich.  539  (1873);  Douglas  v.  Allen,  56  Ohio  St.  156 
(1897);  Driggs  V.  Burton,  44  Vt.  124  (1871),  a  discharge  by  the  court  but 
not  by  formal  order;  Hatch  v.  Cohen,  84  N.  Car.  602  (1881),  and  this  though 
the  court  grants  leave  to  issue,  at  some  later  time,  a  capias  on  the  same  . 
bill,  if  in  fact  the  prosecution  is  never  renewed,  Wilkinson  v.  Wilkinson, 
159  N.   Car.  265    (1912). 

The  withdrawal  of  the  charge  by  the  State  Attorney  is  held  a  sufficient 
termination  in  Fancourt  v.  Heaven,  18  Ont.  L.  R.  492   (1909). 

When  the  prosecuting  attorney  merely  enters  a  nolle  prosequi  without 
further  action  by  the  court,  this  is  held  sufficient  in  Murphy  v.  Moore,  11 
Atl.  665  (Pa.  Sup.  Ct.  1887);  Thompson  v.  Price,  100  Mich.  558  (1894): 
Yocuni  V.  Polly,  1  B.  Monr.  358  (Ky.  1841)  ;  Woodman  v.  Prescott,  66  N.  H. 
375  (1890);  Marcus  v.  Bernstein,  117  N.  Car.  31  (1895);  Woodworth  v. 
Mills,  61  Wis.  44  (1884),  nolle  prosequi  entered  with  leave  of  the  court; 
Moulfon  V.  Beecher,  8  Hun  100  (N.  Y.  1876)  ;  accord:    Graves  v.  Scott,  104 


I008  HALBERSTADT   V.    NEW    YORK    LIFE    INS.    CO. 

pleaded  it  is  evident  that  they  sufficiently  allege  a  termination  of 
the  ^lexican  Proceeding  which  is  not  of  a  character  to  sustain  this 
action,  and  ought  not  to  be.  That  proceeding  came  to  a  dismissal 
and  end,  not  because  of  any  judicial  action  in  favor  of  the  accused 

Va.  372  (1905),  semble,  expressly  overruling  Ward  v.  Reasor,  98  Va.  399 
(1900).  coutra. 

Contra:  Craig  v.  Giiin,  3  Penn.  117  (Del.  1901)  ;  Parker  v.  Farley, 
supra,  semble:  Coupal  v.  Ward,  106  Mass.  289  (1871)  ;  Caring  v.  Fraser,  76 
Maine  Z7  (1884)  ;  Driggs  v.  Burton,  supra,  semble;  Heyward  v.  Cuthbert, 
4  McCord  354  (S.  Car.  1827);  Smith  v.  Shackleford.  1  Nott  &  McC.  36 
(S.  Car.  1817)  ;  and  see  Hurd  v.  Shaw,  20  111.  355  (1858). 

A  discharge  on  habeas  corpus,  the  prosecution  being  then  abandoned,  is 
held  in  Zeblcv  v.  Storey,  117  Pa.  St.  478  (1888^  :  Holfidav  v.  Hollidav,  123 
Cal.  26  (1898):  Millar  v.  Sollitt,  131  111.  Apn.  196  (1907);  see  Walker  v. 
Martin,  43  111.  508  (1867),  to  be  a  sufficient  termination;  contra,  McKinnon 
V.  McLaughlin  Carriage  Co..  37  New  Brunswick,  3  (1904)  ;  Merriman  v. 
Morgan,  7  Ore.  68  (1879)  ;  Haglin  v,  A^'i^le,  65  Ark.  274  (1898)  :  Szvartwout 
V.  Dickelman,  12  Hun  358  (N.  Y.  1877);  Hinds  v.  Parker,  11  App.  Div. 
327  (N.  Y.  1896). 

In  those  jurisdictions  in  which  an  action  lies  for  malicious  prosecution 
of  a  civil  action,  such  action  must  be  shown  to  have  so  terminated  that  it 
cannot  be  revived,  though  a  new  action  may  be  brought  on  the  same  cause 
of  action,  Hurgren  v.  Union  Mutual  Life  Ins.  Co.,  141  Cal.  585  (1904); 
McNamee  v.  Minke,  49  Md.  122  (1878);  Blalock  v.  Randall,  76  111.  224 
(1875).  The  action  being  entirely  in  the  control  of  the  plaintiff  therein,  his 
dismissal,  discontinuance,  or  failure  to  proceed  with  it  for  such  time  as  pre- 
cludes further  prosecution  of  it  is  universaljv  held  to  be  a  sufficient  termina- 
tion, Pierce  V.  Street,  3  B.  &  Ad.  397  (1832)  ;  Emery  v.  Ginnan,  24  111.  App. 
65  (1887);  Coffey  v.  Myers,  84  Ind.  105  (1882);  Burhans  v.  Sanford,  19 
Wend.  417  (N.  Y.  1838)  ;  Hurgren  v.  Ins.  Co.,  supra;  Norrish  v.  Richards. 
3  A.  &  E.  733  (1835);  Cameron  v.  Fergusson,  3  U.  C.  Q.  B.  (O.  S.)  318 
(1834). 

An  action  maj-  be  brought  after  judgment  though  the  time  for  moving 
for  a  new  trial  or  for  an  appeal  has  not  elapsed,  Foster  v.  Denison,  19  R.  I. 
351  (1896)  ;  Marks  v.  Townsend,  97  N.  Y.  590  (1885),  and  see  Carter  v. 
Paige,  80  Cal.  390  (1889).  But  an  action  cannot  be  maintained  if  an  ap- 
peal is  actuallv  pending.  Griffith  v.  Ward,  22  U.  C.  Q.  B.  31  (1863)  ;  How- 
ell v.  Edwards,  8  Ired.  L.  516  (N.  Car.  1848)  ;  Sutton  v.  I'an  Akin,  51  Mich. 
463  (1883)  ;  Spring  v.  Besore,  12  B.  IMonr.  551  (Ky.  1851)  ;  Reynolds  v.  De 
Geer,  13  111.  App.  113  (1883),  appeal  from  judgment  of  a  justice,  which  va- 
cated the  judgment  and  rernoved  the  case  to  the  district  court  for  trial 
de  novo;  contra,  Marks  v.  Tozvnsend,  supra,  an  appeal  only  furnishes  a  reason 
for  staying  the  trial  of  the  action  for  malicious  prosecution  till  the  appeal  be 
determined,  Luby  v.  Bennett,  111  Wis.  613  (1901),  semble. 

When  the  plaintiff  is  arrested  or  his  property  seized  or  attached  in  a  civil 
action,  if  the  arrest,  seizure  or  attachment  is  wrongful  only  in  that  the  princi- 
pal action  is  improperly  brought,  it  must  be  shown  that  such  action  is  termi- 
nated. Part  on  v.  Hill.  12  W.  R.  754  (1864)  ;  lohnson  v.  Finch,  93  N.  Car.  205 
(1885),  plaintiff,  actually  about  to  leave  the  state,  arrested  for  debt,  and 
see  Murson  v.  Austin,  2  Phila.  116  (Pa.  1856). 

When  the  process  is  awarded  for  arrest  of  the  plaintiff,  or  attachment 
or  seizure  of  his  goods,  upon  an  application  setting  forth  the  facts,  not 
involving  the  merits  of  the  principal  action,  it  is  enough  that  the  order  of 
process  be  vacated,  dismissed  or  abandoned,  Ingram  v.  Root,  51  Hun.  238 
(X.  Y.  1889);  Zinn  v.  Rice,  154  Mass.  1  (1891),  p.  12;  Bank  of  Miller  v. 
Richmon,  64  Nebr.  Ill  (1902);  Hogg  v.  Pinckney,  16  S.  Car.  387  (1881); 
Tisdale  v.  Kingman,  34  S.  Car.  326  (1890);  Pixley  v.  Reed,  26  IMinn.  80 
(1879),  though  if  it  be  granted  on  ex  parte  application  the  plaintiff  having 
no  opportunity  to  defend  or  vacate,  Griffith  v.  Hall,  26  U.  C.  Q.  B.  94  (1866)  ; 
Erickson  v.  Brand,  14  Ont.  App.  R.  614  (1888)  ;  Fortman  v.  Rattier,  8  Ohio 
St.  548   (1858);  Donnell  v.  Jones,  13  Ala.  490   (1848),  and  see  Rossiter  v. 


HALBERSTADT    V.    NEW    YORK    LIFE    INS.    CO.  IOO9 

for  lack  of  merits  or  because  of  a  withdrawal  or  abandonment  of 
it  by  the  prosecuting  party,  but  simply  because  the  defendant  there- 
in succeeded  in  escaping  from  the  country  and  eluding  the  juris- 
diction of  the  court  and  thereby  preventing  a  prosecution.  He  by 
nis  flight,  as  in  other  cases  the  accused  had  done  by  agreement,  set- 
tlement or  trick,  prevented  a  consideration  of  the  merits,  and  he 
ought  not  now  to  be  allowed  to  claim  that  there  were  no  merits.* 

In  opposition  to  these  views  it  is  insisted  by  appellant  that  there 
is  a  line  of  cases  which  treats  the  discharge  of  the  defendant  in  the 
criminal  proceeding  as  a  mere  technical  condition  precedent  to  the 
action  for  malicious  prosecution  and  sustain  his  theory  that  the  dis- 
missal of  the  proceeding  against  him  was  sufficient  for  the  pur- 
poses of  this  action,  specific  reference  being  made  to  the  cases  of 
Clark  V.  Cleveland  (6  Hill,  344)  ;  Moulton  v.  Bcecher  (8  Hun, 
100)  ;  Fay  v.  O'Neill  (36  N.  Y.  11)  ;  Coffey  v.  Myers  (84  Ind. 
105),  and  Robbins  v.  Robbins  (133  N.  Y.  597).^     *     *     * 

It  is,  however,  the  Robbins  case  upon  which  the  appellant 
most  relies.  In  that  case  it  appeared  that  the  accused  had  been  dis- 
charged in  the  criminal  proceeding  after  a  hearing  by  a  police  jus- 
tice and  the  only  question  was  whether  she  was  discharged  because 
there  was  not  sufficient  evidence  against  her  or  whether  she  was 
erroneously  discharged  as  a  matter  of  sympathy  upon  her  promise 
of  good  behavior.  This  question  was  one  of  fact  for  the  jury, 
which  presumably  resolved  it  in  favor  of  the  plaintiff.  But  even 
if  the  justice  under  the  circumstances  was  actuated  by  erroneous 
or  improper  motives  in  discharging  her,  it  nevertheless  beyond  any 
question  was  a  sufficient  termination  of  the  proceeding  under  all 
of  the  authorities  bearing  on  that  subject,  and  on  either  theory  the 


Minn.,  etc.  Co.,  37  Minn.  296  (1887),  or  if  to  procure  the  release  of  himself 
or  his  goods  he  is  forced  to  pay  the  demand  or  give  bond  for  paj'ment,  the 
execution  of  the  process  is  itself  a  sufficient  termination,  Spaids  v.  Barrett, 
57  111.  289  (1870)  ;  Brand  v.  Hinchman,  68  Mich.  590  (1888),  see  Cadwell  v. 
Corey,  91  Mich.  335  (1892),  and  compare  Rachelman  v.  Skinner,  46  Minn. 
196  (1891). 

*When,  however,  the  plaintiff  alleged  that  the  criminal  charge  was  false 
and  that  he  had  fled  the  jurisdiction  because  a  conspiracy  existed  to  pre- 
vent him  from  establishing  his  innocence  and  that  the  proceedings  were  dis- 
missed because  the  originators  thereof  "became  convinced  that  they  could 
not  maintain  the  prosecution,"  an  action  for  malicious  prosecution  was 
held  to  lie  in  Coffey  v.  Myers,  84  Ind.  105  (1882).  The  payment  of  costs 
by  the  accused  on  being  discharged  by  the  magistrate  after  a  hearing  on 
the  merits,  he  being  told  that  unless  he  did  so  he  would  have  to  go  back 
to  jail,  does  not  constitute  a  consent  on  his  part  to  the  termination  of  the 
proceedings,  Cascarella  v.  National  Grocer  Co.,  151  Mich.  15  (1908),  and 
an  action  of  malicious  prosecution  lies  by  one,  who  being  arrested  on  a 
writ,  pays  the  amount  claimed  under  protest  to  obtain  his  liberty,  and  such 
payment  does  not  preclude  him  from  showing  want  of  probable  cause, 
Morton  v.  Young,  55  Maine  24  (1867)  ;  White  v.  International  Text  Book  Co., 
136  N.  W.  121  (Iowa  1912);  and  see  Brand  v.  Hinchman,  68  Mich.  590 
(1888),  payment  no  bar  to  action  for  suing  out  malicious  attachment,  and 
Daily  v.  Donath,  100  111.  App.  52  (1901).  where  the  criminal  process  was 
abused  by  its  use  as  a  means  of  enforcing  payment  of  a  debt  claimed  to 
be  due. 

®A  portion  of  the  opinion,  reviewing  Clark  v.  Cleveland,  Moulton  v. 
Beecher,  Fay  v.  O'Neill  and  Coffey  v.  Myers,  is  omitted. 


lOIO  HALBERSTADT   V.    NEW    YORK    LIFE    INS.    CO. 

basis  was  laid  for  an  action  of  malicious  prosecution.  Under  these 
circumstances  the  learned  judge  who  wrote  the  opinion  made  use 
of  some  expressions  which  interpreted  by  themselves  are  quite 
broad  and  general  and  are  quite  confidently  quoted  by  this  appel- 
lant. He  said,  among  other  things:  "It  can  not  in  reason  make 
any  difference  how  the  criminal  prosecution  is  terminated,  provided 
it  is  terminated.  ^'  *  *  The  circumstances  under  which  she 
(the  plaintiff  in  that  case)  is  discharged  may  furnish  competent 
evidence  upon  the  issue  of  probable  cause  and  malice,  and  on  the 
question  of  damages.  *  *  =i=  The  termination  of  the  criminal 
proceeding  is  a  mere  technical  matter  in  no  way  concerning  the 
merits  of  the  action  and  is  a  mere  condition  precedent  to  its  main- 
tenance."    (P.  600.) 

In  my  opinion  these  remarks  should  not  be  construed  as  mean- 
ing and  were  not  intended  to  mean  what  the  appellant  claims.  For 
instance,  it  is  not  possible  that  it  was  intended  to  disregard  the  en- 
tire current  of  authority  that  a  termination  of  criminal  proceedings 
by  agreement  or  settlement  is  not  such  an  one  as  will  support  an  ac- 
tion for  malicious  prosecution,  and  yet  literally  the  language  em- 
ployed would  include  that  case.  We  must  construe  the  language 
used  by  Judge  Earl  in  the  light  of  the  events  he  was  considering, 
and  these  were  the  discharge  of  an  accused  by  a  magistrate  acting 
judicially  even  though  erroneously  after  a  hearing.  This  was  what 
the  judge  had  in  mind  when,  after  discussing  the  effect  of  a  con- 
viction, he  mentioned  the  other  termination  resulting  "favorably  to 
the  accused  or  without  his  conviction,"  as  sufficient.  And  when  he 
said  'Tt  can  not  in  reason  make  any  difference  how  the  criminal 
prosecution  is  terminated  provided  it  is  terminated,"  he  immediate- 
ly referred  as  illustrating  his  meaning  to  the  case  then  in  hand, 
where  the  accused  had  been  duly  discharged  by  the  justice  although 
as  claimed  erroneously.  Termination  as  the  result  of  judicial  con- 
sideration and  decision  was  what  he  was  talking  about  and  this 
was  the  kind  he  contemplated  when  wath  his  concluding  words  he 
said:  "Therefore  any  termination  such  as  we  have  above  men- 
tioned, as  a  general  rule,  furnishes  the  condition  precedent."  (P. 
600.) 

Therefore,  I  think  that  these  cases  do  not  either  singly  or  col- 
lectively sustain  the  burden  which  appellant  has  sought  to  impose 
especially  upon  them  of  furnishing  an  authority  for  the  reversal  of 
the  order  appealed  from,  and  for  all  the  reasons  stated  the  latter 
should  be  affirmed,  with  costs,  and  the  questions  certified  to  us  an- 
swered in  the  negative. 

Vann,  J.  I  concur  in  the  result  because  there  was  merely  an 
attempt  to  prosecute  with  no  actual  prosecution.  The  Mexican 
court  did  not  acquire  jurisdiction  of  the  person  of  the  plaintiff,  for 
he  was  not  arrested,  nor  was  process  or  notice  of  any  kind  served 
upon  him.  He  was  not  brought  into  court  and  the  prosecution 
could  not  end  because  it  was  never  begun.  He  could  not  be  a  party 
defendant  until  he  was  notified  or  voluntarily  appeared.  He  was 
threatened  with  prosecution,  but  neither  his  person  nor  his  prop- 


QUARTZ    KILL    MIX.    CO.    V.    EVRE.  lOII 

erty  was  touched.  There  can  be  no  prosecution  unless  knowledge 
thereof  is  brought  home  to  the  alleged  defendant  in  some  way. 
If  there  had  been  a  prosecution  commenced  the  crime  could  not 
have  outlawed  during  the  defendant's  absence,  as  is  admitted  of 
record.  While  in  civil  actions,  in  order  to  arrest  the  Statute  of 
Limitations,  "an  attempt  to  commence  an  action,  in  a  court  of  rec- 
ord, is  equivalent  to  the  commencement  thereof,"  still  the  attempt 
goes  for  naught  unless  followed  by  service,  actual  or  constructive, 
within  sixty  days.  (Code  Civ.  Proc,  sec.  399.)  The  rule  was 
similar  at  common  law.  Although,  in  order  to  prevent  injustice, 
an  action  was  deemed  to  be  commenced  by  the  delivery  of  process 
for  service,  it  was  never  treated  as  erfectual  for  any  purpose  un- 
less actual  service  was  subsequently  made.  The  authorities  cited 
in  the  prevailing  opinion  illustrate  this  proposition. 

In  the  absence  of  controlling  authority,  which  it  is  conceded 
does  not  exist,  I  favor  restricting  rather  than  enlarging  the  scope 
of  the  action.  This  accords  with  the  general  position  of  the  court 
upon  the  subject. 

Gray,  Haight  and  Chase,  JJ.,  concur  with  Hiscock,  J, ;  Cul- 
LEN,  Ch.  J.,  and  Willard  Bartlett,  J.,  concur  with  Vaxn,  J. 

Order  affirmed. 


(2)   Nature  o£  the  proceedings. 


QUARTZ  HILL  GOLD  MINING  COMPANY  v.  EYRE. 
Court  of  Appeal,  1883.    Lazv  Reports  1882-83,  11  Q.  B.  D.  674. 

BowEN,  L.  J.  The  plaintifif  company  complains  that  the  de- 
fendant falsely  and  maliciously  presented  a  petition  to  wind  it  up.^ 
When  the  action  came  on  to  be  tried  before  Stephen,  J.,  at  the  con- 
clusion of  the  plaintiff's  case  the  learned  judge  nonsuited  the  com- 
pany, on  the  ground  that  if  the  action  would  lie  under  any  circum- 
stances, at  all  events  it  would  not  lie  without  proof  of  special  dam- 
age. Without  actually  deciding  the  point,  he  expressed  an  opinion 
that  the  plaintiff  company  had  failed  to  make  out  malice  or  a  want 
of  reasonable  or  probable  cause,  and  the  burden  of  proving  each  of 
these  elements  in  the  case  lay  on  the  company.  He  thought  that 
the  defendant  had  pointed  out  a  fatal  blot  in  the  company's  case 
by  reason  of  a  failure  to  shew  such  special  damage  as  would  main- 
tain the  action. 

The  first  question  to  be  considered  is,  whether  an  action  willj  f 
lie  for  falsely  and  maliciously  presenting  a  petition  to  wind  up  a| 
company ;  and  the  second  is,  whether  an  action  will  lie  without  f  ur- 


^  It  was  averred  in  the  complaint  and  proved  at  the  trial  that  the  de- 
fendants had  upon  the  presentation  of  the  petition  advertised  the  same 
in  the  London  Gazette  and  other  papers,  and  that  two  days  before  the  pres- 
ent action  was  brought,  the  petition  was  dismissed  by  the  court  and  wholly 
determined  in  the  plaintiff's  favor. 


IOI2  QUARTZ    HILL    MIX.    CO.    V.    EYRE. 

ther  proof  of  special  damage  than  was  presented  to  the  judge  in 
this  case.  I  think  that  both  the  questions  can  be  answered  at  once 
because,  as  it  seems  to  me,  the  discussion  which  exhausts  the  one, 
presents  the  materials  for  determining  the  other.  I  start  with  this, 
that  at  the  present  day  the  bringing  of  an  action  under  our  present 
rules  of  procedure,  and  with  the  consequences  attaching  under  our 
present  law,  although  the  action  is  brought  falsely  and  maliciously 
and  w^ithout  reasonable  or  probable  cause,  and  whatever  may  be 
the  allegations  contained  in  the  pleadings,  will  not  furnish  a  ground 
for  a  subsequent  complaint  by  the  person  who  has  been  sued,  nor 
support  an  action  on  his  part  for  maliciously  bringing  the  first  ac- 
tion. To  speak  broadly,  and  without  travelling  into  every  corner  of 
the  law,  whenever  a  man  complains  before  a  court  of  justice  of  the 
false  and  malicious  legal  proceedings  of  another,  his  complaint,  in 
order  to  give  a  good  and  substantial  cause  of  action,  must  shew 
that  the  false  and  malicious  legal  proceedings  have  been  accom- 
panied  by  danl^e  express  or  miplied.  The  reason~wTry7  to  my 
rhmd,  the  brlngmg  ot  an  action  under  our  present  rules  of  proced- 
ure and  under  our  present  law,  even  if  it  is  brought  without  rea- 
sonable or  probable  cause  and  wnth  malice,  gives  rise  to  no  ground 
of  complaint,  appears  to  me  easily  to  be  seen  upon  referring  to  the 
doctrine  laid  down  by  Holt,  C.  J.,  in  Savile  v.  Roberts,  i  Ld.  Raym. 
374,  at  p.  378.  He  there  said  that  there  were  three  sorts  of  dam- 
age, any  one  of  which  would  be  sufificient  to  support  an  action  for 
malicious  prosecution,  "(i)  The  damage  to  a  man's  fame,  as  if 
the  matter  whereof  he  is  accused  be  scandalous.  And  this  was  the 
ground  of  the  case  between  Sir  Andrew  Henley  and  Dr.  Burstall: 
Raym,  180.  *  *  *  (2)  The  second  sort  of  damages,  which 
would  support  such  an  action,  are  such  as  are  done  to  the  person ; 
as  where  a  man  is  put  in  danger  to  lose  his  life,  or  limb,  or  liberty, 
w^hich  has  been  always  allow^ed  a  good  foundation  of  such  an  ac- 
tion.- *  *  '^  (3)  The  third  sort  of  damages,  which  will  sup- 
port an  action,  is  damage  to  a  man's  property,  as  where  he  is  forced 
to  expend  his  money  in  necessary  charges,  to  acquit  himself  of  the 
crime  of  which  he  is  accused,  which  is  the  present  charge.  That  a 
man  in  such  case  is  put  to  expenses,  is  without  doubt,  which  is  an 
injury  to  his  property,  and  if  that  injury  is  done  to  him  malicious- 
ly, it  is  reasonable  that  he  shall  have  an  action  to  repair  himself." 
It  is  clear  that  Holt,  C.  J.,  considered  one  of  those  three  heads  of 
damage  necessary  to  support  an  action  for  malicious  prosecution. 
To  apply  this  test  to  any  action  that  can  be  conceived  under  our 
present  mode  of  procedure  and  under  our  present  law,  it  seems  to 
me  that  no  mere  bringing  of  an  action,  although  it  is  brought  mali- 


I 


/See  Byne  v.  Moore,  5  Taunt.  187,  1  Marsh  12  (1813),  where  a  bill  of 
indictment  was  preferred  for  assault  and  battery  but  ignored  by  the  grand 
jury  and  the  accused  was  not  arrested — held  no  action  lay,  the  indictment 
not  containing  "scandal" — (as  to  this  see  Clerk  and  Lindsell  on  Torts, 
6th  ed.,  693)  and  Mitchell  v.  Donanski,  28  R.  I.  94  (1906),  warrant  obtained, 
never  served  but  abandoned,  charging  acts  not  constituting  any  crime,  held 
not  actionable  unless  the  offence  charged  is  actionable  slander  per  se  or  the 
plaintiff  can  show  special  damage. 


QUARTZ    HILL    MIX.    CO.    Z'.    EYRE.  IOI3 

cionsly  and  wiihout  reasonable  or  probable  cause,  will  give  rise  to 
an  action  for  malicious  prosecution.  In  no  action,  in  all  events  in 
none  of  the  ordinary  kind,  not  even  in  those  based  upon  fraud 
where  there  are  scandalous  allegations  in  the  pleadings,  is  damage 
to  a  man's  fair  fame  the  necessary  and  natural  consequence  of 
bringing  the  action.  Incidentally  matters  connected  with  the  ac- 
tion, such  as  the  publication  of  the  proceedings  in  the  action,  may 
do  a  man  an  injury;  but  the  bringing  of  the  action  is  of  itself  no 
injury  to  him.  When  the  action  is  tried  in  public,  his  fair  fame 
will  be  cleared,  if  it  deserves  to  be  cleared;  if  the  action  is  not 
tried,  his  fair  fame  can  not  be  assailed  in  any  way  by  the  bringing 
of  the  action.  Apply  the  second  head  of  damage,  namely,  those 
injuries  which  are  done  to  the  person ;  the  bringing  of  no  action 
under  our  present  law  and  under  the  ordinary  rules  of  procedure 
will  involve  as  a  necessary  and  natural  consequence  damage  to  the 
person.  The  third  sort  of  damage,  the  existence  of  which  will  sup- 
port such  an  action  as  this,  is  damage  to  a  man's  property.  The 
same  observation  applies  to  this  third  head  of  damage.  The  bring- 
ing of  an  ordinary  action  does  not  as  a  natural  or  necessary  conse- 
quence involve  any  injury  to  a  man's  property,  for  this  reason,  that 
the  only  costs  which  the  law  recognizes,  and  for  which  it  will  com- 
pensate him,  are  the  costs  properly  incurred  in  the  action  itself. 
For  those  the  successful  defendant  will  have  been  already  compen- 
sated, so  far  as  the  law  chooses  to  compensate  him.^  If  the  judge 
refuses  to  give  him  costs,  it  is  because  he  does  not  deserve  them : 
if  he  deserves  them,  he  will  get  them  in  the  original  action ;  if  he 
does  not  deserve  them,  he  ought  not  to  get  them  in  a  subsequent 
action.  Therefore  the  broad  canon  is  true  that  in  the  present  day/ 
and  according  to  our  present  law,  the  bringing  of  an  ordinary  ac/ 
tion,  however  maliciously,  and  however  great  the  want  of  rea[ 
sonable  and  probable  cause,  will  not  support  a  subsequent  actioii, 
for  malicious  prosecution.*     I  do  not  say  that  if  one  travels  into 

^  "The  common  law  has  made  provision  to  hinder  malicious  and  friv- 
olous and  vexatious  suits,  that  every  plaintiff  should  find  pledges,  who  were 
amerced,  if  the  claim  was  false;  which  judgment  the  court  always  gave,  and 
then  a  writ  issued  to  the  coroners,  and  they  affeered  them  according  to  the 
proportion  of  the  vexation.  See  8  Co.  39  b,  F.  N.  B.  Id  a"  (Fitzherbert 
de  Natitra  Brevium).  "But  that  method  became  disused  and  then  to  supply 
it,  the  statutes"  (4  Jac.  1  c  3  and  8  Eliz.  c  2)  "gave  costs  to  the  defendant. 
And  though  the  practice  of  levying  amercements  be  disused,  yet  the  Courts 
must  give  judgment  according  to  the  law  and  not  vary  their  judgments 
by  accidents.  But  there  was  no  amercement  upon  indictments,  and  the 
party  had  not  anv  remedi'  to  reimburse  himself  but  by  action" — Holt,  C.  J, 
in  Saville  v.  Roberts.  1  Ld.  Ravm.  374  (1700),  p.  380;  and  see  Putnam,  J.,  in 
Lindsay  v.  Lamed,  17  ^lass.  190  (1821). 

*  Accord:  Tamblyn  v.  Johnston,  126  Fed.  267  (C.  C.  A.  8th  Circ.  1903) 
semble;  Mitchell  v.  Southwestern  R.  Co..  75  Ga.  378  (1^98)  ;  Smith  v.  Mich- 
igan Buggy  Co.,  175  111.  619  (1898);  Wetmore  v.  Mellinger,  64  Iowa  741 
(1884)  ;  Cade  v.  Yocuni,  8  La.  Ann.  477  (1852)  ;  McNamee  v.  Minke,  49  Md. 
122  (1878);  Supreme  Lodge,  etc.,  v.  Unvcrzaqt,  76  Md.  104  (1894);  IVood- 
viausie  v.  Logan,  2  X.  J.  L.  (1  Penn.)  93  (1806)  ;  Potts  v.  Imlay,  4  N.  J.  L 
(1  .South.)  330  (1816)  ;  Bite  v.  Mycr,  40  N.  J.  L.  252  (1878)  ;  Paul  v.  Fargo. 
84  App.  Div.  9  (X.  Y.  1903),  Adams,  P.  J.,  dissenting  on  the  ground  that 
the    injury    to    his    reputation    caused    by    the    charge,    practically    amount- 


IOI4 


OUARTZ    HILL    MIX.    CO.    V.    EYRE. 


the  past  and  looks  through  the  cases  cited  to  us,  one  will  not  find 
scattered  observations  and  even  scattered  cases  which  seem  to 
shew  that  in  other  days,  under  other  systems  of  procedure  and 
law,  in  which  the  consequences  of  actions  were  different  from  those 
of  the  present  day,  it  was  supposed  that  there  might  be  some  kind 
of  action  which,  if  it  were  brought  maliciously  and  unreasonably, 
might  subsequently  give  rise  to  an  action  for  malicious  prosecution,  'v^ 
It  is  unnecessary  to  say  that  there  could  not  be  an  action  of  that 
kind  in  the  past,  and  it  is  unnecessary  to  say  that  there  may  not 
be  such  an  action  in  the  future,  although  it  can  not  be  found  at  the 
present  day.  The  counsel  for  the  plaintiff  company  have  argued  this 
case  with  great  ability ;  but  they  can  not  point  to  a  single  instance 
since  Westminster  Hall  began  to  be  the  seat  of  justice  in  which  an 
ordinary  action,  similar  to  the  actions  of  the  present  day,  has  been 
considered  to  justify  a  subsequent  action  on  the  ground  that  it  was 
brought  maliciously  and  without  reasonable  and  probable  cause. 
And  although  every  judge  of  the  present  day  will  be  swift  to  do 
justice  and  slow  to  allow  himself  as  to  matters  of  justice  to  be  en- 
cumbered with  either  precedents  or  technicalities,  still  every  wise 
judge  who  sits  to  administer  justice  must  feel  the  greatest  respect 
for  the  wisdom  of  the  past  presents  us  with  no  decisive  authority 
for  the  broad  proposition  in  its  entirety  which,  the  counsel  for  the 
plaintiff  company  have  put  forward. 

But  although  an  action  does  not  give  rise  to  an  action  for  ma- 
licious prosecution,  inasmuch  as  it  does  not  necessarily  or  naturally 
involve  damage,  there  are  legal  proceedings  which  do  necessarily  and 
naturally  involve  that  damage ;  and  when  proceedings  of  that  kind 
have  been  taken  falsely  and  maliciously,  and  without  reasonable  or 
probable  cause,  then,  inasmuch  as  an  injury  has  been  done,  the  law 
gives  a  remedy.  Such  proceedings  are  indictments — I  do  not  say 
■  every  indictment,  but  I  mean  all  indictments  involving  either  scan- 
dal to  reputation  or  the  possible  loss  of  liberty  to  the  person,  that 

ing  to  one  of  larceny,  upon  which  the  original  action  was  based,  constituted 
a  special  or  added  grievance;  Willard  v.  Holmes,  Booth  &  Hayden,  142  N. 
Y.  492  (1894),  semblc;  Terry  v.  Davis,  114  N.  Car.  31  (1894):  Cincinnati 
Daily  Tribune  Co.  v.  Bruck.  61  Ohio  St.  489  (1899),  Kramer  v.  Stock,  10 
Watts  115  (Pa.  1840);  Muldoon  v.  Rickey,  103  Pa.  St.  110  (1883):  Mitchell 
V.  Donanski,  28  R.  I.  94  (1906):  Johnson  v.  King,  64  Tex.  226  (1885): 
Abbott  V.  Thome,  34  Wash.  692  (1904)  ;  Luby  v.  Bennett,  111  Wis.  61  (1901), 
semble. 

In  Mitchell  v.  Southwestern  R.  Co.,  Terry  v.  Davis,  and  Abbott  v. 
Thome,  34  Wash.  692  (1904).  it  is  said  that  such  an  action  lies  when  special 
damage,  other  than  that  which  necessarily  result  from  all  prosecutions  of  like 
causes,  is  shown;  in  IVillard  v.  Holmes  et  al.,  142  N.  Y.  492  (1894),  that 
it  lies  where  the  party  "has  been  subjected  to  some  special  or  added  griev- 
ance," but  the  residue  of  the  sentence  seems  to  confine  actionable  special 
grievances  to  interferences  with  persons  or  property,  and  even  such  actions,  it 
is  said,  ought  not  to  be  encouraged,  and  in  JVetniofe  v.  Mellinger,  64  Iowa 
741  (1884),  it  is  said  that  if  the  action  be  so  prosecuted  as  to  entail  unusual 
hardship  upon  the  defendant,  he  ought  to  be  compensated,  see  Pangburn  v. 
Bull.  1  Wend.  345  (X.  Y.  1828),  defendant  brought  action  after  action,  dis- 
continuing the  one  and  starting  another,  and  Pope  v.  Pollock,  46  Ohio  St.  367 
(1889),  advantage  taken  of  the  peculiar  incidents  of  a  statutory  action  in  or- 
der to  harass  the  plaintiff  and  subject  him  to  special  loss  of  property  and 
reputation. 


QUARTZ    HILL    MIX.    CO.    Z'.    EVRE.  IOI5 

IS,  all  ordinary  indictments  for  ordinary  offences.  In  its  very  na- 
ture the  presentation  or  the  prosecution  of  an  indictment  involves 
damage,  which  cannot  be  afterwards  repaired  by  the  failure  of 
the  proceedings,  to  the  fair  fame  of  the  person  assailed,  and  for 
that  reason,  as  it  seems  to  me,  the  law  considers  that  to  present  and 
prosecute  an  indictment  falsely  and  without  reasonable  or  prob- 
able cause,  is  a  foundation  for  a  subsequent  action  for  malicious 
prosecution. 

But  there  are  other  proceedings  which  necessarily  involve  dam- 
age, such  as  the  presentation  of  a  bankruptcy  petition  against  a 
trader.  In  the  past,  when  a  trader's  property  was  touched  by 
making  him  a  bankrupt  in  the  first  instance,  and  he  was  left  to  get 
rid  of  the  misfortune  as  best  he  could,  of  course  he  suffered  a  di- 
rect injury  to  his  property.  But  a  trader's  credit  seems  to  me  to 
be  as  valuable  as  his  property,  and  the  present  proceedings  in  bank- 
ruptcy, although  they  are  dissimilar  to  proceedings  in  bankruptcy 
under  former  Acts,  resemble  them  in  this,  that  they  strike  home  at 
a  man's  credit,  and  therefore  I  think  the  view  of  those  judges  cor- 
rect who  held,  in  Johnson  v.  Emerson,  Law  Rep.  6  Ex.  329,  that 
the  false  and  malicious  presentation,  without  reasonable  and  prob- 
able cause,  of  a  bankruptcy  petition  against  a  trader,  under  the] 
Bankruptcy  Act,  1869,  gave  rise  to  an  action  for  malicious  prose-/ 
cution.^ 


'"Accord:  Chapman  v.  Pickersgill,  2  Wils.  145  (1762)  ;  Stewart  v.  Sonne- 
born,  98  U.  S.  187  (1878):  Wilkinson  v.  GoodfeUow,  141  Fed.  218  (1905); 
Lawton  v.  Green,  5  Hun  157  (N.  Y.  1875);  King  v.  Sullivan,  92  S.  W.  51 
(Texas  Civ.  App.  1906);  McNamee  v.  Minkc,  49  Md.  122  (1878),  semble; 
Hess  V.  German  Baking  Co.,  37  Ore.  297  (1900),  semble. 

So  an  action  lies  against  one  who  has  maliciously  obtained  a  temporarv 
injunction.  Such  an  injunction,  it  is  said  in  Cincinnati  Daily  Tribune  Co.  V. 
Bruck,  61  Ohio  St.  489  (1899),  "imposes  a  restraint  upon  the  ovvnfer  over 
his  property,  as  hurtful  to  .him  as  if  it  were  in  fact  seized;"  Mitchell  v. 
Southwestern  R.  Co.,  7S  Ga.  398  (1885)  ;  Crate  v.  Kohlsaat,  44  111.  App.  460 
(1892);  Beach  v.  Williams,  79  N.  W.  393  (Iowa  1899);  Burt  v.  Smith,  84 
App.  Div.  47  (N.  Y.  1903).  compare  Clements  v.  Odorless  Excavating  Ap- 
paratus Co.,  67  Md.  461  (1887);  Nczvark  Coal  Co.  v.  Upson,  40  Ohio  St. 
17  (1883);  Hess  v.  German  Baking  Co.,  27  Ore.  297  (1900),  semble,  in 
which  the  plaintifif  failed,  because  owing  to  the  death  of  the  defendant  he 
was  forced  to  strike  out  of  his  declaration  the  averments  of  malice  and 
want  of  probable  cause;  Williams  v.  Ainsivorth,  121  Wis.  600  (1904);  but 
the  injunction  must  have  been  dissolved  and  the  main  suit  hnally  de- 
termined in  the  plaintiff's  favor  before  an  action  will  lie,  Munce  v.  Black, 
7  Ir.  C.  L.  R.  475  (1858),  dispossessory  injunction  obtained  in  a  dispute 
between  landlord  and  tenant;  Williams  v.  Ainsivorth,  121  Wis.  600  (1904), 
in  which  it  was  also  held  that  the  plaintiff  must  show  that  he  was  damaged 
by  such  injunction,  and  that  no  action  lay  for  maliciously  restraining  the 
sale  of  goods  in  the  absence  of  proof  that  they  brought  less  when  sold  than 
they  would  have  done  Jiad  their  sale  not  been  restrained. 

So  in  Slater  v.  Kimhro,  91  Ga.  217  (1892).  it  was  held  that  a  tenant,  a 
boarding-house  keeper,  against  whom  her  landlord  maliciously  and  without 
probable  cause  sued  out  and  had  executed  a  summarv  statutory  process  to 
dispossess  her,  could  recover  the  cost  of  procuring  the  bond  and  sureties 
required  to  prevent  immediate  eviction  and  damages  for  loss  of  board- 
ers caused  thereby;  and  see  Tavemier  v.  Morehead,  41  W.  Va.  116  (1895); 
contra:  Everly  \\  Rupp,  90  Pa.  St.  259  (1879),  semble,  writ  of  estrep- 
ment— "this   writ    is    purely   preventive,    it   neither   arrests    the    person,    nor 


I0l6  QUARTZ    HILL    MIN.    CO.    V.    EYRE. 

I  wish  to  suggest  an  analogy,  not  with  the  view  of  laying 
down  any  principle  of  law,  but  rather  because  it  is  a  matter  which 
may  throw  light  on  what  I  have  been  saying,  and  nothing  which  has 
fallen  from  the  Master  of  the  Rolls  leads  me  to  suppose  that  any- 
thing which  I  am  about  to  say  is  contrary  to  what  he  thinks.  In 
my  opinion  some,  though  perhaps  not  a  perfect,  analogy  may  be 
found  in  the  law  of  libel  and  slander.  The  essence  of  the  law  as 
to  libel  and  slander  is  that  the  words  must  be  published  falsely  and 
maliciously.  With  regard  to  written  words  or  libel,  the  law  does 
not  require  proof  of  special  damage,  but  with  regards  to  some  kind 
of  slander  or  words  spoken  the  law  is  different.  I  am  aware  that 
the  point  is  controverted,  and  that  it  has  never  been  exactly  settled 
why  this  difference  exists ;  but  it  does  exist,  and  it  is  remarkable 
that  the  cases  in  which  words  spoken  are  actionable,  are  either 
those  where  damage  has  been  actually  sustained,  or  where  the  dam- 
age is  of  such  a  kind  as  to  be  involved  in  the  slander  itself,  that  is 
to  say,  to  be  the  natural  and  necessary  consequence  of  the  words 
spoken,  as,  for  example,  when  the  slander  charges  that  a  man  has 
been  guilty  of  an  indictable  offence  which  is  criminal  and  scan- 
dalous in  its  character,  and  involves  the  loss  of  liberty  or  fair 
fame.  What  other  slanders  are  actionable?  Those  which  impute 
to  a  man  a  disease  necessarily  rendering  him  unfit  for  society, 
and  those  which  touch  a  man  in  his  trade  or  profession.  Put  those 
two  classes  together — the  class  of  malicious  prosecutions  which  the 
law  recognizes  and  the  class  of  slanders  which  the  law  recognizes 
— and  although  the  two  may  not  be  based  on  exactly  the  same  prin- 
ciples, perhaps  a  student  may  find  material  for  pursuing  the  an- 
alogy between  them. 

In  the  present  instance  we  have  to  consider  whether  a  petition 
to  wind  up  a  company  falls  upon  the  one  side  of  the  line  or  the 
other— rwhether,  as  the  Master  of  the  Rolls  has  said,  it  is  more  like 
an  action  which  does  not  necessarily  involve  damage,  and  there- 
fore will  not,  however  maliciously  and  wrongfully  brought,  justify 
an  action  for  malicious  prosecution,  or  whether  it  is  more  like  a 
bankruptcy  petition.  I  do  not  see  how  a  petition  to  wind  up  a  com- 
pany can  be  presented  and  advertised  in  the  newspapers  without 
striking  a  blow  at  its  credit.  I  suppose  that  most  of  the  lawyers 
of  the  present  day  have  seen  a  great  increase  of  three  kinds  of 
abuses,  all  of  which  are  indulged  in  for  the  purpose  of  extorting 
the  payment  of  some  debt,  which  ought  to  be  the  subject  of  some 
civil  redress.  There  is  the  abuse  of  the  police  courts  when  their 
process  is  used  to  extort  money;  there  is  the  abuse  of  the  bank- 
ruptcy law ;  and  there  is  the  abuse  of  the  provisions  in  the  Com- 
panies Act,  1862,  for  winding  up  companies.  In  all  these  three 
forms  of  abuse  the  aim  is  to  wreck  credit,  and  I  should  be  sorry  to 


seizes  the  goods  of  the  defendant";  and  see  Batson  v.  Paris  Mountain  Water 
Co.,  73  S.  Car.  368  (1906),  where  it  is  held  that  the  remedy,  if  any,  must  be 
upon  the  bond  required  by  statute  and  ordered  by  the  court  to  be  given  by 
the  complainant  in  the  injunction  proceedings,  and  Manlove  V.  Vick,  55 
Miss.  567  (1878),  doubting  whether  such  remedy  is  exclusive. 


II 


EASTIN    V.    BANK    OF    STOCKTON.  lOI/ 

^hink  that  since  they  all  involve  a  blow  at  the  credit  of  those  against 
whom  they  are  instituted,  the  law  did  not  afterwards  place  in  the 
hands  of  the  injured  and  aggrieved  persons  who  have  been  wrong- 
fully assailed,  a  means  of  righting  themselves,  as  far  as  can  be, 
for  the  mischief  done  to  them.  I  therefore  answer  the  two  first 
questions — whether  this  action  will  lie,  and  whether  it  will  lie 
without  further  proof  of  special  damage — in  the  following  man- 
ner y/  I  think  that  the  action  will  lie,  for  the  reason  that  special 
damage  is  involved  in  the  very  institution  of  the  proceedings 
[(■w/liich  ex  hypothesi  are  unjust  and  without  reasonable  or  prob- 
able cause)   for  the  purpose  of  winding  up  a  going  company.*^ 


LORD  HOLT,  C.  J.,  IN  SAVILE  v.  ROBERTS. 

1  Lord  Raymond,  374  (1700),  p.  379. 

"There  is  a  great  difference  between  suing  an  action  mali- 
ciously and  the  indicting  of  a  man  maliciously.  When  a  man  sues 
an  action  he  claims  a  right  to  himself  or  complains  of  an  injury 
done  to  him  ;  and  if  a  man  fancies  he  has  a  right,  he  may  sue  an 
action,  4  Co.  17  (a)  makes  a  difference,  that  if  a  man  calls  A,  who 
is  an  heir  at  law  to  B  a  bastard,  A  may  have  an  action  against  the 
man  ;  but  if  the  man  says  A  is  a  bastard,  and  I  am  heir  to  B,  no 
action  lies.  If  then  the  law  will  permit  a  man  to  make  a  claim  out 
of  a  court  of  justice,  a  fortiori  when  he  proceeds  to  assert  his  right 
in  a  legal  course."^ 


EASTIN  V.  BANK  OF  STOCKTON. 

Supreme  Court  of  the  State  of  California,  1884.    66  Cal.  Rep.  123, 

The  cause,  of  action  set  forth  in  the  complaint  was  in  sub- 
stance, that  the  plaintiff  had  executed  two  promissory  notes  to 
Barney  &  Co.,  which  notes  he  had  paid  at  the  defendant  bank ;  that 
after  the  notes  had  been  paid  the  plaintiff  lost  them  and  the  bank 
became  possessed  of  them ;  that  the  bank  and  its  co-defendant  Ho- 
gan,  entered  into  a  conspiracy  for  the  purpose  of  extorting  money 
from  him  by  means  of  the  possession  of  the  notes  and  the  plaintiff's 

\4ccord:  Liiby  v.  Bennett,  111  Wis.  613  (1901),  application  for  the 
dissolution  of  a  partnership  and  the  appointment  of  a  receiver,  but  the  suit 
in  which  the  application  was  made  must  have  terminated,  Liquid  Carbonic 
Acid  Co.  V.  Convert,  82  111.  App.  39  (1898). 

^  See  Lockenour  v.  Sides,  57  Ind.  360  (1877),  where  it  is  said  that  an  ac- 
tion for  malicious  prosecution  would  lie  against  one  maliciously  and  with- 
out probable  cause  instituting  proceedings  to  place  the  plaintiff  under  guard- 
ianship as  insane,  "they  being  not  entirely  like  a  civil  action,  in  which  the 
plaintiff  therein  claims  some  right  in  herself.  *  *  *  The  defendants 
were  officious  intermeddlers,  without  any  claim  of  right  or  interest  in  the 
matter";  and  see  Smith  v.  Smith,  20  Hun  555  (N.  Y.  1880),  where  it  was  held 
that  an  action  would  lie  against  one  who  maliciously  and  without  prob- 
able cause  filed  a  notice  of  "lis  pendens"  against  the  plaintiff's  property 
to  prevent  her  from  selling  it,  with  which  compare  Gerard  v.  Dickinson,  post. 


1 01 8  EASTIN    V.    BANK   OF    STOCKTON. 

supposed  inability  to  produce  evidence  of  their  payment ;  that  in 
pursuance  of  this  conspiracy  the  defendant  mahciously,  wilfully 
and  without  reasonable  or  probable  cause,  and  with  the  intent  to 
vex,  harass  and  injure  the  credit  of  the  plaintiff,  commenced  an 
action  in  the  district  court  for  the  recovery  of  the  sum  for  which 
the  notes  were  given ;  that  the  process  in  that  action  was  served 
upon  the  plaintiff  who  expended  for  counsel  fees  and  costs  the  sum 
of  $650 ;  and  that  by  reason  of  the  commencement  and  prosecution 
of  that  action  the  plaintiff  was  damaged  in  the  amount  of  $5,000, 
by  injury  to  his  credit,  neglect  of  his  business,  etc. ;  and  the  action 
'resulted  in  a  judgment  for  the  defendant  therein — the  plaintitT 
here. 

The  answer  of  the  defendants  put  in  issue  the  material  aver- 
ments of  the  complaint,  and  a  trial  was  had  with  a  jury,  resulting 
in  a  verdict  for  the  plaintiff  for  the  sum  of  $3,000;  and  the  judg- 
ment was  entered  against  the  defendants  for  that  sum  and  costs.  ^ 

Ross,  J.  As  the  case  must  be  sent  back  for  a  new  trial,  it  is 
proper  to  decide  another  question  raised,  and  that  is,  whether  in 
this  state  an  action  can  be  maintained  for  the  malicious,  prosecu- 
tion of  a  civil  action,  in  which  no  process  other  than  the  summons 
was  issued.  The  weight  of  the  authorities,  American  as  well  as 
English,  is  against  the  maintenance  of  such  an  action ;  and  so  are 
most  of  the  text-writers.  The  question  has  never  been  determined 
in  this  State,  and  we  are,  therefore,  at  liberty  to  adopt  the  rule 
that  we  think  is  founded  on  the  better  reason.  The  point  was  made 
in  the  case  of  Smith  v.  George,  52  Cal.  344,  but  was  not  decided, 
the  court  holding  that  it  was  unnecessary  to  decide  it,  but  remark- 
ing that  "the  adjudged  cases  in  England  and  America  are  conflict- 
ing upon  the  question,  and  depending  to  a  considerable  degree,  it 
would  seem,  upon  the  prevailing  statutory  provisions  as  to  the  re- 
covery of  costs  by  the  defendant  upon  the  termination  of  a  civil 
action  in  his  favor."  The  cases  are  collected  and  reviewed  by  Mr. 
Lawson,  in  an  instructive  article  upon  the  subject,  published  in  the 
American  Law  Register,  and  which  will  be  found  in  the  21st  vol., 
at  pages  281-353.  The  cases  are  too  numerous  to  be  here  referred 
to  in  detail.  The  English  cases  which  deny  the  right  to  maintain 
the  action,  stand  upon  the  ground  that  the  successful  defendant  is 
adequately  compensated  for  the  damages  he  sustains  by  the  costs 
allowed  him  by  the  statute.-    Those  costs,  it  seems,  include  the  at- 


^The  facts  are  abridged  from  those  stated  in  the  opinion  of  Ross,  I., 
a  part  of  whose  opinion  is  omitted,  holding  that  the  court  below  erred  in 
leaving  the  question  of  probable  cause  to  the  jury  and  in  instructing  them 
that,  if  they  found  a  verdict  for  the  defendant,  they  should  allow  him  for  all 
he  had  paid  out  in  defense  in  the  original  action,  without  regard  to  whether 
such  expenditures  were  reasonable  or  not. 

■  As  to  the  remedy,  before  the  enactment  of  such  statutes,  of  one 
against  whom  an  unsuccessful  action  was  brought,  see  Holt,  C.  J.,  in  Savile  v. 
Roberts,  Note  3  to  Quart::  Hill  Gold  Mining  Co.  v.  Eyre.  In  Mitchell  v. 
Southivestcrn  R.  Co.~7S  Ga.  398  (1885),  Blandford,  J.,  says,  p.  404,  "before 
the  statute  of  52  Henry  HI.,  1277,  it  was  the  practice  constantly  to  hold 
that,  when  one  sued  another  maliciously  and  without  probable  cause,  he 
was  liable  to  such  person  for  damages  in  an  action  of  trespass  on  the  case." 


EASTIN    V.    BANK    OF    STOCKTON.  IOI9 

torney's  charge  for  preparing  the  case  for  trial  in  all  its  parts,  the 
fees  of  the  witnesses  and  the  court  officials,  and  even  the  hon- 
orarium of  the  barrister  who  conducted  the  case  in  court.  The 
reason  upon  which  the  English  rule  rests  would  not,  therefore, 
seem  to  apply  here,  where  the  costs  recoverable  under  the  statute 
are  confined  to  much  narrower  limits.  Under  our  system  the  de- 
fendant may  be  subjected,  or  he  may  subject  himself,  to  expenses 
not  recoverable,  even  if  the  suit  terminates  in  his  favor;  but  of 
this  he  has  no  legal  ground  to  complain  when  the  suit  is  brought 
and  prosecuted  in  good  faith,  because,  as  said  in  Closson  v.  Sta- 
ples, 42  Vt.  209,  "it  is  the  ordinary  and  natural  consequences  of  a 
uniform  and  well  regulated  system,  to  which  all  parties  in  civil 
actions  are  required  to  conform.  But  when  the  action  is  brought 
and  prosecuted  maliciously,  and  without  reasonable  or  probable 
cause,  the  plaintiff  asserts  no  claim  in  respect  to  which  he  had  any 
right  to  invoke  the  aid  of  the  law.  In  such  cases  the  plaintiff,  by 
an  abuse  of  legal  process,  unjustly  subjects  the  defendant  to  dam.- 
ages  which  are  not  fully  compensated  by  the  costs  he  recovers.  The 
plaintiff,  in  such  case,  has  no  legal  or  equitable  right  to  claim  that 
the  rule  of  law  which  allows  a  suit  to  be  brought  and  prosecuted 
in  good  faith  without  liability  of  the  plaintiff  to  pay  the  defendant 
damages,  except  by  way  and  to  the  extent  of  the  taxable  costs,  if 
judgment  be  rendered  in  his  favor,  should  extend  to  a  case  where 
the  suit  was  maliciously  prosecuted  without  probable  cause.  But 
where  the  damages  sustained  by  the  defendant  in  defending  a  suit 
maliciously  prosecuted  without  reasonable  or  probable  cause,  ex- 
ceed the  costs  obtained  by  him,  he  has,  and  of  right  should  have, 
a  remedy  by  action  on  the  case. 

Two  other  objections  made  to  the  maintenance  of  the  action — 
first,  the  claim  that  if  such  suits  are  allowed,  litigation  will  become 
interminable,  because  every  successful  action  will  be  'followed  by 
another,  alleging  malice  in  the  prosecution  of  the  former ;  and,  sec- 
ond, that  if  the  defendant  may  sue  for  damages  sustained  by  an 
unfounded  prosecution,  the  plaintiff  may  equally  bring  an  action 
when  the  defendant  makes  a  groundless  defense — are  well  an- 
swered in  the  article  already  alluded  to :  "To  the  first  objection,  it 
is  enough  to  say  that  the  action  will  never  lie  for  an  unsuccessful 
prosecution,  unless  begun  and  carried  on  with  malice  and  zvithout 
probable  cause.  With  the  burden  of  this  difficult  proof  upon  him, 
the  litigant  will  need  a  very  clear  case,  before  he  will  be  willing  to 
begin  a  suit  of  this  character.  The  second  argument  fails  to  dis- 
tinguish between  the  position  of  the  parties,  plaintiff  and  defend- 
ant, in  an  action  at  law.  The  plaintiff  sets  the  law  in  motion  ;  but 
if  he  does  so  groundlessly  and  maliciously,  he  is  the  cause  of  the 
defendant's  damage.  But  the  defendant  stands  only  on  his  legal 
rights — the  plaintiff  having  taken  his  case  to  court,  the  defendant 
has  the  privilege  of  calling  upon  him  to  prove  it  to  the  satisfaction 
of  the  judge  or  jury,  and  he  is  guilty  of  no  wrong  in  exercising  this 
privilege."^ 

.      'But  see  Hoyt  v.  Macon,  2  Colo.  113   (1873),  where  the  defendant  mali- 
ciously intervened  to  prevent  the  plaintiff  from  pre-empting  public  land. 


I020  BURT   ■:-.    SMITH. 

Judgment  and  order  reversed,  and  the  cause  remanded  for  f« 
new  trial.* 


(3)  Want  of  probable  cause  and  malice. 


BURT  V.  SMITH. 
Court  of  Appeals  of  New  York,  1905.    181  N.  Y.  1. 

Vann^  J.  A  malicious  prosecution  is  one  that  is  began  in 
malice,  without  probable  cause  to  believe  it  can  succeed,  and  which 
finally  ends  in  failure.  An  action  for  malicious  prosecution  is 
usually  based  upon  an  arrest  in  criminal  proceedings,  although  it 
may  be  founded  upon  a  civil  action  when  commenced  simply  to 
harass  and  oppress  the  defendant.  (Pangburn  v.  Bull,  i  Wend. 
345 ;  Vanduzor  v.  Linderman,  lo  Johns.  io6 ;  Bump  v.  Betts,  19 
Wend.  421  ;  Cooley  on  Torts,  187;  19  Am.  &  Eng.  Encyc.  Law  (2d 
ed.),  652)  damages  are  rarely  recovered,  however,  for  the  malicious 
prosecution  of  a  civil  action  unless  person  or  property  is  interfered 
with  by  some  incidental  remedy,  such  as  arrest,  attachment  or  in- 
junction. As  public  policy  requires  that  all  persons  should  freely 
resort  to  the  courts  for  redress  of  wrongs,  the  law  protects  them 
when  they  act  in  good  faith  and  upon  reasonable  grounds  in  com- 
mencing either  a  civil  or  criminal  prosecution.  While  malice  is 
the  root  of  the  action,  malice  alone  even  when  extreme,  is  not 
enough,  for  want  of  probable  cause  must  also  be  shown.  Prob- 
able cause  is  the  knowledge  nf  facts,  ^'-^-ii^l  ^f  ^ppRr^"^j  strong 
enough  to  justify  a  reasonable  pian  ^'^"'  t^-""  K^Hpf  tii^t  v.^  |igg  law- 
f^T  grounds  for  prosecuting  the  defendant  in  the  manner  com- 
plained ot.  'i'he  want  of  probable  cause  does  not  mean  the  want 
of  any  cause,  but  the  want  of  any  reasonable  cause,  such  as  would 
persuade  a  man  of  ordinary  care  and  prudence  to  believe  in  the 
truth  of  the  charge.^     Probable  cause  does  not  necessarily  depend 

^Accord:  Cooper  v.  Armour,  42  Fed.  215  (Cir.  Ct.  N.  Y.  1890),  semble; 
Wade  V.  National  Bank,  114  Fed.  377  (Cir.  Ct.  Wash.  1902)  ;  Berson  v.  Ewiiig, 
84  Cal.  89;'  Whipple  v.  Fuller,  11  Conn.  582  (1836),  the  plaintiff's  property 
was  in  fact  attached,  as  it  was  in  Wall  v.  Toomev,  52  Conn.  35  (1884)  ; 
Whitcscll  V.  Studv,  2,7  Ind.  App.  429  (1906);  Marbonrg  v.  Smith,  11  Kans. 
554  (1873)  ;  Woods  v.  Finnell,  13  Bush  628  (Kv.  1878)  :  Antdiff  v.  June,  81 
Mich.  477  (1890);  MacPherson  v.  Runyon,  41  Minn.  524  (1889);  Smith  v. 
Burrus,  106  Mo.  94  (1891);  McCormick  Harvesting  Mach.  Co.  v.  Willan, 
63  Ncbr.  391  (1901);  Kolka  v.  Jones,  6  N.  Dak.  461  (1897);  Lipscomb  v. 
Schofner,  96  Tenn.  112  (1896)  ;  Closson  v.  Staples,  42  Vt.  209. 

In  Allen  V.  Codman,  139  Mass.  136  (1885),  an  action  for  the  malicious 
prosecution  of  an  action  of  ejectment  "the  main  question,"  is  said  by 
Holmes,  J.,  "to  be  whether  the  court  below  was  right  in  ruling  that  there 
was  probable  cause  for  the  defendant's  suit  in  ejectment." 

^In  Heyne  v.  Blair,  62  N.  Y.  19  (1875),  probable  cause  is  said  to  be 
"such  a  state  of  fact  and  circumstances  as  would  lead  a  man  of  ordinary 
caution  and  precedence,  acting  conscientiously,  impartially,  reasonably  and 
without  prejudice  upon  the  facts  within  his  knowledge,  to  believe  the  partv 
accused  is  guilty;"  accord:  Jordan  v.  Alabama  G.  S.  R.  Co..  81  Ala.  220 
(1887),  p.  226;  Kansas  &  Tex.  Coal  Co.  v.  Galloway,  71  Ark.  351  (1903). 
somewhat  similar  is  the  language  of  Shaw,  C.  J.,  in  Bacon  v.  Towne,  4  Cush. 


1 


BURT   V.    SMITH.  I02I 

apon  the  actual  guilt  of  the  person  prosecuted,  but  may  rest  upon 
the  prosecutor's  belief  in  his  guilt  when  based  on  reasonable 
o-rounds.  One  may  act  upon  what  appears  to  be  true,  even  if  it 
mrns  out  to  be  false,  provided  he  believes  it  to  be  true^  and  the 
appearances  are  sufficient  to  justify  the  belief  as  reasonable.  Be- 
lief alone,  however  sincere,  is  not  sufficient,  for  it  must  be  founded 
on  circumstances  wdiich  make  the  belief  reasonable.  U  probable 
cause  exists,  it  is  an  absolute  protection  against  an  action  for  ma- 

217  (Mass.  1849),  and  Sterrett,  J.,  in  McClafferty  v.  ■P/''^/'^  l^l  Pf-  ^t. 
86  (1892),  and  see  Tindal,  C.  J.,  in  Broad  v.  Ham,  5  Bingh.  N.  C.  722  (18^9), 
p.  725,  "There  must  be  a  reasonable  cause— such  as  would  operate  in  the  mind 
of  a  discreet  man;  there  must  also  be  probable  cause— such  as  would  operate 
in  the  mind  of  a  reasonable  man;"  and  Weaver,  J.,  in  Flam  v.  Lee,  116 
Iowa  289  (1902),  p.  298,  and  Dav,  C,  in  Bank  of  Miller  x  Richmon,  M 
Nebr  111  (1902),  Thompson  v.  Beacon  Vallev  Rubber  Co.,  56  Conn.  49J 
(1888).  Rohitzek  v.  Danm,  220  Pa.  St.  61  (1908),  and  Davis  v.  McMillan, 
142  Mich.  391  (1905),  where  the  question  of  probable  cause  is  ^said  to  de- 
pend upon  what  "an  ordinarily  fair  and  careful  business  man"  would  be 
likely  to  believe. 

In  some  cases  it  is  said  that  there  must  be  "a  reasonable  ground  of 
suspicion,  supported  by  circumstances .  sufficiently  strong  in  thernselves  to 
warrant  a  cautious  man  in  the  belief,  that  the  person  accused  is  guilty  of  the 
offense  with  which  he  is  charged";  Munns  v.  Dupont  de  Nemours,  3  Wash. 
C  C.  31  (1811)  ;  Foshav  v.  Ferguson,  2  Denio  617  (N.  Y.  1846)  :  Richev  v. 
McBean,  17  111.  63  (1855)  ;  Wilson  v.  Bozven,  64  Mich.  133  (1887)  ;  Cole  v. 
Curtis,  16  Minn.  182  (1870)  ;  Ash  v.  Marlow,  20  Ohio  119  (1853)  ;  but  in  Mc- 
Clafferty v.  Philp,  151  Pa.  St.  86  (1892),  the  word  "cautious"  is  held  to  be 
impropeV  since  it  "suggests  the  idea  of  timidity";  accord:  Eggett  v.  Allen, 
106  Wis.  633  (1900),  but  see  same  case  119  Wis.  625  (1903). 

Information  from  reputable  sources  may  furnish  reasonable  cause, 
Lister  v.  Ferryman,  L.  R..  4  H.  L.  (E.  &  T.  App.)  521  (1870);  Bank  of 
Miller  v.  Richmon,  64  Nebr.  Ill  (1902);  IVilson  v.  Bozven,  64  Mich.  133 
(1887);  Baldzvin  v.  Von  der  Ahe,  184  Pa.  St.  116  (1898);  Smith  v.  Ege, 
.52  Pa.  419  (1866),  defendant  acted  on  information  of  a  detective  employed 
bv  him  to  investigate  a  crime;  and  this  though  the  informant  being  an  al- 
leged accomplice  of  the  plaintiff,  could  not  testify  against  him,  Dazvson  v. 
Vansandau,  11  W.  R.  516  (1863).  It  is  held  in  Hicks  v.  Faulkner,  L.  R.  8 
Q.  B.  Div.  167  (1878),  that  a  defendant  is  acting  reasonably  in  trusting  to 
his  memory  which  has  in  the  past  proved  reliable,  though  on  the  partic- 
ular occasion  it  plays  him  false. 

The  defendant's  mistake  may  be  one  of  fact,  he  may  have  suspected  the 
plaintiff  of  criminal  acts  which  he  has  never  committed,  or  he  may  have 
erroneously  believed  that  the  plaintiff's  actual  conduct  constituted  the  crime 
charged.  Some  cases  intimate  that  an  accuser,  if  he  chooses  to  act  with- 
out legal  advice,  must  at  his  peril  know  the  law.  Wills  v.  Noyes,  12  Pick. 
324  (Mass.  1832)  ;  Urban  v.  T\s::ka,  16  Dist.  R.  625  (Pa.  1907)  ;  Gaertner  v. 
Hevl,  179  Pa.  St.  391  (1897)  ;  Hall  v.  Hawkins,  5  Humph.  357  (Tenn.  1844)  : 
while  Whipple  v.  Gorsuch,  82  Ark.  252  (1907),  holds  that  a  "well  founded 
doubt  as  to  the  law  may  constitute  probable  cause  *  *  *  the  same  as 
a  doubt  concerning  the  facts,"  Bramwell,  B.,  in  Johnson  v.  Emerson,  L.  R. 
6  Exch.  p.  329  (1871),  semble,  where  the  defendant  was  a  solicitor  prosecut- 
ing bankruptcy  proceedings  for  a  client.  Where,  however,  the  mistake  is  as 
to  a  difficult  and  disputed  question  of  law,  it  is  held  that  such  mistake  hon- 
estlv  entertained  is  reasonable  cause,  Philipps  v.  Navlor,  4  H.  &  N.  565 
(1859),  McCov  V.  Kalbach.  51  Pa.  Super.  Ct.  364  (1912),  but  see  Nehr  v. 
Dobbs,  47  Nebr.  863  (1896). 

'"It  would  be  quite  outrageous  if,  where  a  party  is  proved  to  believe  a 
charge  is  unfounded,  it  were  to  be  held  that  he  could  have  reasonable  and 
probable  cause,"  Lord  Denman,  C.  J.,  in  Haddrick  v.  Heslop,  and  Raine, 
12  Ad.  &  E.  (N.  S.)  (Q.  B.)  267  (1848)  ;  Broad  v.  Ham.  5  Bing.  N.  C.  722 
(1839)  ;  Turner  v.  Ambler,  10  A.  &  E.  (N.  S.)   (Q.  B.)  252  (1847) ;  Ball  v. 


1022  BURT   Z'.    SMITH. 

licious  prosecution,  even  when  express  malice  is  proved.'  Thus 
an  innocent  person  may  be  prosecuted  unjustly  and  subjected  to 
expense  and  disgrace  with  no  right  to  call  the  prosecutor  to  ac- 
count, provided  he  acted  upon  an  honest  and  reasonable  belief  in 
commencing  the  proceeding  complained  of.  Peace  and  good  order 
exact  this  hardship  from  the  individual  for  the  benefit  of  the  peo- 
ple at  large,  so  that  citizens  may  not  be  prevented  by  the  fear  of 
the  consequences  from  attempting  to  assert  their  own  rights  or  to 
vindicate  the  cause  of  public  justice  by  an  appeal  to  the  courts. 
{Hazard  v.  Flury,  120  N.  Y.  223;  Heyne  v.  Blair,  62  N.  Y.  19; 
Farnam  v.  Feeley,  56  N.  Y.  451 ;  Carl  v.  Avers,  53  N.  Y.  14;  Long 
Island  Bottlers'  Union  v.  Seifs,  180  N.  Y.  243 ;  Foshay  v.  Ferguson, 
2  Den.  617;  Bishop  on  Non-Contract  Law,  238;  Bigelow  on  Torts, 
194;  Addison  on  Torts,  592;  Newell  on  Malicious  Prosecution, 
252.) 

Probable  cause  is  always  a  question  of  law  for  the  court,  to 
be  decided  outright  if  there  is  no  conflict  in  the  evidence,  other- 
wise by  instructing  the  jury  as  to  wdiat  facts  if  found  will  establish 
a  want  of  probable  cause.*     In  the  case  now  before  us  the  trial 

Rawls,  93  Cal.  222  (1892)  ;  Donnelly  v.  Burkett,  75  Iowa  613  (1887)  ;  Peck 
v.  Chouteau,  91  Mo.  138  (1886);  Knisdey  v.  Shcubergcr,  7  Watts  193  (Pa. 
1838)  ;  Spear  v.  Hiles,  67  Wis.  350  (1886).  It  is  constantly  said  that  the  de- 
fendant's belief  in  the  plaintiff's  guilt  must  be  "honest"  as  well  as  rea- 
sonable, Mitchell  v.  Wall,  111  Mass.  492  (1873);  El  Reno  Gas  Co.  v.  Spur- 
geon,  30  Okla.  88  (1911)  ;  Stewart  v.  Sonneborn,  98  U.  S.  187  (1878).  So  it 
is  said  that  the  test  -is  the  defendant's  belief  based  on  reasonable  grounds, 
Mitchell  V.  Logan,  172  Pa.  St.  349  (1896). 

The  innocence  of  the  plaintiff  is  immaterial.  El  Reno  Gas  &c.  Co.  v. 
Spurge  on,  30  Okla.  88  (1911),  the  existence  of  probable  cause  depends  on 
the  sufliciency  of  the  facts  which  are  known  or  ought  to  have  been  known 
to  defendant  when  he  prosecuted  the  plaintiff,  Thompson  v.  Beacon  Valley 
Rubber  Co.,  56  Conn.  493  (1888);  Delegal  v.  Highley,  3  Bingh.  N.  C.  950 
(1837)  ;  Mitchell  v.  Logan,  172  Pa.  St.  349  (1896)  ;  Seibert  v.  Price,  5  Watts 
&  S.  438  (Pa.  1843);  Mavnard  v.  Sigman,  65  Nebr.  590  (1902);  Scott  v. 
Shelor,  28  Grat.  891  (Va.  1877)  ;  contra.  Final  v.  Core.  18  W.  Va.  1  (1881), 
discussing  the  earlier  cases. 

^Accord:  Johnstone  v.  Sutton,  1  T.  R.  510  (1786),  p.  545?  Mitchell  v. 
Jenkins,  5  B.  &  Ad.  588  (1833)  ;  Turner  v.  Ambler,  10  A.  &  E.  (N.  S.)  252 
(1847);  Stewart  v.  Sonneborn,  98  U.  S.  187  (1878);  Jordan  v.  Alabama 
G.  S.  R.  Co.,  81  Ala.  220  (1886)  ;  Renfro  v.  Prior,  22  Mo.  App.  403  (1886)  ; 
Foshay  v.  Ferguson,  2  Denio  617  (N.  Y.  1846),  Diets  v.  Langfitt,  63  Pa. 
234  (1869);  this  is  equally  so  when  the  action  is  for  maliciously  instituting 
civil  proceedings  in  which  the  person  or  property  of  the  defendant  therein 
is  seized,  Emerson  v.  Cochran,  111  Pa.  St.  619  (1886). 

*'The  question  of  probable  cause  is  a  mixed  proposition  of  law  and 
fact"  says  the  court  in  Johnstone  v.  Sutton,  1  T.  R.  510  (1786),  "Whether 
the  circumstances  alleged  to  show  it  probable  or  not  probable,  are  true  and 
existed,  is  matter  of  fact;  but  whether  supposing  them  true,  they  amount 
to  probable  cause,  is  a  question  of  law;  and  upon  this  distinction  proceeded 
the  case  of  Reynolds  v.  Kennedy."  It  is  however  a  question  of  law  only 
in  sense  that  it  is  to  be  determined  by  the  judge,  see  Lords  Chelmsford 
and  Westbury  in  Lister  v.  Ferryman,  L.  R.  4  E.  &  I.  App.  521  (1870),  the 
latter  regretting  that  the  existence  of  such  cause,  which  he  says  is  "an  in- 
ference of  fact"  which  "must  be  derived  from  all  the  circumstances  of  the 
case,"  "is  an  inference  to  be  drawn  by  the  judge  and  not  by  the  jury";  see 
also,  Panton  v.  Williams,  2  Ad.  &  E.  CN.  S.)  169  (1841).  As  to  the  prac- 
tice in  the  earlier  writ  of  conspiracy,  see  Coxe  v.  Wirrall,  Cro.  Jac.  193.   The 


I 


BURT    r.    SMITH.  IO23 

judge  decided  that  probable  cause  existed  and  although  he  gave 
a  wrong  reason  for  his  decision,  we  think  his  conclusion  was  right. 
The  prima  facie  case  made  out  by  the  order  granting  the  injunc- 
tion was  not  overcome  by  the  other  evidence  introduced  by  the 
plaintiffs.  The  case  presented  by  them  in  the  state  court,  so  far 
as  the  question  of  probable  cause  is  concerned,  differed  in  no  con- 
trolling feature  from  that  presented  to  the  Federal  court  when 
the  injunction  was  granted.  Aside  from  the  alleged  infringement 
of  the  registered  trade-mark,  there  was  still  a  prima  facie  case  of 
infringement  of  the  common-law  trade-mark.  While  some  new 
facts  were  proved,  it  did  not  appear  that  they  were  known  to  the  de- 
fendant when  he  applied  for  the  injunction.  With  some  difference 
in  detail,  there  was  a  general  resemblance  in  the  size,  color  and  ap- 
pearance of  the  cough  drops  and  packages  used  by  the  respective 
parties.  The  defendant  had  used  his  design  in  substantially  the  same 
form  for  nearly  twenty  years  until  it  had  become  generally  known 
as  his  property.  It  had  been  protected  bv  the  judgments  and  orders 
of  both  state  and  federal  courts  in  manv  cases. 

The  burden  of  proof  was  upon  the  plaintiffs  to  establish  a 
want  of  probable  cause,  but  we  think  their  own  evidence  shows 
that  the  defendant  had  probable  cause  to  commence  the  action  and 
procure  the  injunction,  -because  the  packages  and  drops  of  the 
plaintiff  resembled  his  own  so  closely  as  to  be  "calculated  to  de- 
ceive the  careless  and  unwary."  The  average  purchaser  would 
not  know  the  difference. 


weight  of  American  authority  is  accord:  Stewart  v.  Sonneborn,  08  U  S. 
187  (1878);  Whipple  v.  Gorsuch,  82  Ark.  252  (1907);  Holliday  v.  Hollidav, 
123  Cal.  26  (1898),  compare  Johnson  v.  Miller,  63  Iowa  529  (1884),  with 
69  Iowa  562  (1886),  Ahrens  v.  Hocher.  106  Kv.  692  (1899)  ;  Cloon  v  Gerry, 
13  Gray  201  (Mass.  1859)  ;  Wilson  v.  Bowen,  64  Mich.  133  (1887)  ;  Bank  of 
Miller  v.  'Richmon,  64  Nebr.  Ill  (1902)  :  Rawson  v.  Leggctt,  184  N.  Y  504 
(1906);  Jones  v.  W.  &  W.  R.  Co.,  125  N.  Car.  227  (1889);  Robitzck  v. 
Damn,  220  Pa.  St.  61  (1908)  ;  see.  however.  Rittcr  v.  Ezunng,  174  Pa.  St  341 
(1896).  But  see  Krehhiel  v.  Hcnkle.  142  Iowa  677  (1909),  and  Stuhbs  v.  Mid- 
holland,  168  Mo.  47  (1901);  Idarris  v.  Qiiincy,  Omaha  &  Kansas  City  R. 
Co.,  172  Mo.  App.  261  (1913),  with  which  compare  Carp  v.  Queen  Ins.  Co., 
203  Mo.  295  (1907),  p.  351,  and  Smith  v.  Gtvnn,  144  S.  W.  149  (Mo.  App 
1912). 

As  to  the  proper  method  to  be  pursued  bv  the  court  when  the  facts  are 
m  dispute,  see  Bowen,  J.,  in  Ahrath  v.  A'.  E.  R.  Co.,  L.  R.  11  Q.  B.  Div. 
79  (1883),  p.  455,  where  he  points  out  three  methods  by  which,  where  the 
functions  of  the  court  and  jury  can  be  principally  adjusted,  where  there  is 
conflicting  evidence  as  to  the  facts  alleged  to  show  the  presence  or  absence 
of  probable  cause:  (1)  To  charge  a  jury  generally  as  to  the  effect  of  the 
evidence,  leaving  them  to  give  a  general  verdict.  This,  as  he  points  out,  is 
extrernely  difficult  to  do  clearly  and  satisfactorily  where  the  facts  are  at  all 
complicated.  (2)  To  instruct  the  jury  as  to  what  facts,  if  proved,  would 
show  probable  cause  or  show  the  absence  thereof,  leaving  to  them  to  determine 
which  state  of  facts  exist  and  to  render  a  verdict  in  accordance  with  such 
state  of  evidence.  This  is  the  course  usually  pursued  in  America.  (See 
cases  above  cited  and  Thomas  v.  Smith,  51  Mo.  App.  605  (1892).)  (3)  To 
require  the  jury  to  give  a  special  verdict  setting  forth  the  actual  state  of 
facts  which  they  find  to  exist.  This  practice,  while  usual  in  England,  is 
hardly  ever  followed  in  America. 


1024  yV       I  MUNXS    V.    DUPONT. 


MUNNS  V.  DUPONT  et  al. 

Vowt  of  United  States,  1811.    3  B.  Wash.  U.  S.  C.  C.  31. 

Washington,  J.  (charging  the  jury).  The  question  upon 
which  this  cause  must  be  decided,  is  not  whether  the  plaintiff  has 
suffered  from  a  charge  of  which  the  defendants  were  the  authors, 
and  which  was  not  founded  in  truth,  but  whether  the  charge  was 
made  maHciously,  and  without  probable  cause.  In  trials  of  actions 
of  this  nature,  it  is  of  infinite  consequence  to  mark  with  precision, 
the  line  to  which  the  law  will  justify  the  defendant  in  going,  and 
will  punish  him  if  he  goes  beyond  it.  On  the  other  hand,  public 
justice  and  public  security  require,  that  offenders  against  the  laws 
should  be  brought  to  trial  and  punishment,  if  their  guilt  be  estab- 
lished. Courts  and  juries,  and  the  law  officers,  whose  duty  it  is  to 
conduct  the  prosecution  of  public  offenders,  must  in  most  instances, 
if  not  in  all,  proceed  upon  the  information  of  individuals ;  and  if 
these  actions  are  too  much  encouraged, — if  the  informer  acts  upon 
his  own  responsibility,  and  is  bound  to  make  good  his  charge  at  all 
events,  under  the  penalty  of  responding  in  damages  to  the  accused, 
few  will  be  found  bold  enough,  at  so  great  a  risk,  to  endeavor  to 
promote  the  public  good.  The  informer  can  seldom  have  a  full 
view  of  the  whole  ground,  and  must  expect  to  be  frequently  disap- 
pointed, by  evidence  which  the  accused  only  can  furnish.  Even  if 
he  be  possessed  of  the  whole  evidence,  he  may  err  in  judgment ;  and 
in  many  instances  a  jury  may  acquit,  where  to  his  mind  the  proofs 
of  guilt  were  complete.  It  is  not  always  the  fate  of  those  to  com- 
mand success,  who  deserve  it. 

On  the  other  hand,  the  rights  of  individuals  are  not  to  be  lightly 
sported  with ;  and  he  who  invades  them,  ought  to  take  care  that  he 
acts  from  pure  motives,  and  with  reasonable  caution.  For  the  in- 
tegrity of  his  own  conduct,  he  must  be  responsible ;  and  his  sin- 
cerity must  be  judged  of  by  others,  from  the  circumstances  under 
which  he  acted.  If,  without  probable  cause,  he  has  inculpated  an- 
other, and  subjected  him  to  injury,  in  his  person,  character,  or 
estate,  it  is  fair  to  suspect  the  purity  of  his  motives,  and  the  jury  are 
warranted  in  presuming  malice.  But  though  malice  should  be 
proved,  yet  if  the  accusation  appear  to  have  been  founded  upon 
probable  ground  of  suspicion,  he  is  excused  by  the  law.  Both  must 
be  established  against  him  viz.  malice,  and  the  want  of  probable 
cause.  Of  the  former,  the  jury  are  exclusively  the  judges — the 
latter,  is  a  mixed  question  of  fact  and  law.  What  circumstances 
are  sufficient  to  prove  a  probable  cause,  must  be  judged  of,  and 
decided  by  the  court.  But  to  the  jury  it  must  be  referred,  whether 
the  circumstances  which  amount  to  probable  cause,  are  proved  by 
.^  credible  testimony  or  not. 


BowEN,  L.  J.  in  Abrath  v.  North  Eastern  Ry.  Co.  (1883),  Law  Reports 
1882-83,  11  Q.  B.  D.  440.    This  action  is  for  malicious  prosecution,  ana  in  an 


SKEFFINGTON    V.    EYLWARD.  IO25 

action  for  malicious  prosecution  the  plaintiff  has  to  prove,  first,  that  he  was 
innocent  and  that  his  innocence  was  pronounced  by  the  tribunal  before  which 
the  accusation  was  made;  secondly,  that  there  was  a  want  of  reasonable  and 
probable  cause  for  the  prosecution,  or,  as  it  may  be  otherwise  stated,  that  the 
circumstances  of  the  case  were  such  as  to  be  in  the  eyes  of  the  judge  incon- 
sistent with  the  existence  of  reasonable  and  probable  cause;  and,  lastly,  that 
the  proceedings  of  which  he  complains  were  initiated  in  a  malicious  spirit, 
that  is,  from  an  indirect  and  improper  motive,  and  not  in  furtherance  of  jus- 
tice. All  those  three  propositions  the  plaintiff  has  to  make  out,  and  if  any 
step  is  necessary  to  make  out  any  one  of  those  three  propositions,  the  burden 
of  making  good  that  step  rests  upon  the  plaintiff. 


SKEFFINGTON  v.  EYLWARD. 
Supreme  Court  of  Minnesota,  1906.    97  Minn.  Rep.  244. 

Start,  C.  J.  This  is  an  appeal  by  the  defendant  from  an  order 
of  the  district  court  of  the  county  of  Rice  denying  his  motion  for  a 
new  trial  in  an  action  for  malicious  prosecution,  in  which  there  was 
a  verdict  for  the  plaintiff  for  $250. 

The  undisputed  evidence  establishes  these  facts :  The  defend- 
ant was  chairman  of  the  board  of  town  supervisors  of  the  town  of 
Webster.  Complaint  having  been  made  to  him  that  the  plaintiff  had 
obstructed  a  public  highway  of  the  town,  he  investigated  the  charge, 
consulted  with  the  county  attorney  with  reference  to  the  matter, 
and  then  made  a  complaint  before  the  municipal  court  of  the  city  of 
Northfield  charging  the  plaintiff  with  such  offense.  The  plaintiff 
pleaded  not  guilty  to  the  charge^  but  upon  a  trial  by  the  judge  with- 
out a  jury  he  was  found  guilty,  and  appealed  from  the  judgment  to 
the  district  court.  The  cause  was  dismissed  and  the  plaintiff  dis- 
charged in  the  district  court  upon  motion  of  the  county  attorney. 

I.    The  first  contention  of  the  defendant  is  that  the  conviction 
of  the  plaintiff  by  the  municipal  court  is  conclusive  evidence  that  the 
defendant    had    probable    cause    for    instituting    the    prosecution. 
Therefore  there  was  no  evidence  to  support  the  verdict.    The  juris- 
diction of  the  municipal  court  of  the  city  of  Northfield  in  criminal 
cases  triable  within  the  county  is  the  saine  as  that  of  justice  of  the 
peace.     We  have,  then,  the  question  whether  the  conviction  of  a^j 
party  in  a  justice  or  muncipal  court,  which  is  reversed  on  appeal  of  I 
the  case  to  the  district  court,  is  conclusive  or  prima  facie  evidence/ 
of  probable  cause  for  instituting  the  prosecution. 

A  number  of  cases,  especially  the  earlier  ones,  holding  that  if 
the  defendant  in  a  criminal  proceeding  is  convicted  in  the  first  in- 
stance, and  appeals,  and  is  acquitted  in  the  appellate  court,  the  con- 
viction below  is  nevertheless  conclusive  of  probable  cause  for  his 
prosecution.^  Cooley,  Torts,  *i85.  Another  class  of  cases,  perhaps 
the  greater  number,  hold  that  a  judgment  convicting  the  defendant 

^  Revnolds  v.  Kennedy,  1  Wils.  232  (1748);  Herman  v.  Brookerhoff.  8 
Watts  240  (Pa.  1839),  semble;  JVhitnev  v.  Peckham,  15  Mass.  243  (1818); 
Morrow  V.  Wheeler  &  Wilson  Mfg.  Co.,  165  Mass.  349  (1896). 


I026  SKEFFIXGTON    t'.    EYLWARD. 

in  a  criminal  case,  although  reversed  on  appeal  and  the  defendant 
acquitted,  is  conclusive  proof  of  probable  cause  in  an  action  by  the 
defendant  to  recover  damages  for  malicious  prosecution,  unless  he 
alleges  and  proves  that  the  judgment  was  obtained  by  fraud  or  per- 
jury.- Newell,  Mai.  Pros.  299:  19  Am.  &  Eng.  Ency.  (2d  Ed.) 
667.  A  third  class  of  cases  holds  that  a  judgment  convicting  the  de- 
fendant in  a  criminal  proceeding,  which  is  reversed  on  appeal,  is  not 
conclusive,  but  prima  facie  evidence  of  probable  cause,  which  may 
be  rebutted  by  any  competent  evidence  which  clearly  overcomes  the 
presumption  arising  from  the  fact  of  the  defendant's  conviction  in 
the  first  instance.  I  Jaggard,  Torts,  618;  Burt  v.  Place,  4  Wend. 
591  ;  Nicholson  v.  Sternberg,  61  App.  Div.  51,  70  N.  Y.  Supp.  212; 
Goodrich  v.  Warner,  21  Conn.  432;  Ross  v.  Hixon,  46  Kans.  550, 
26  Pac.  955,  12  L.  R.  A.  760,  26  Am.  St.  Rep.  123 ;  Barber  v.  Scott, 
92  Iowa,  52,  59,  60  N.  W.  497 ;  Nehr  v.  Dobbs.  47  Neb.  863,  66  N. 
W.  864;  Bechel  v.  Pacific,  65  Neb.  826,  91  N.  W.  853.^ 

'Accord:  Crescent  City  Live  Stock  Landing  &c.  Co.  v.  Butchers' 
Union  &c.  Co.,  120  U.  S.  141  (1887);  Holliday  v.  HoUiday,  123  Cal.  26 
(1898),  justice  of  the  peace  binding  plaintiff  over  to  keep  the  peace; 
Thomas  v.  Muehlmann,  92  111.  App.  571  (1900);  Adams  v.  Bkknell,  126 
Ind.  210  (1890);  Blucher  v.  Zonker,  19  Ind.  App.  615  (1898);  Bomman  v. 
Brown,  52  Iowa  437  (1879)  ;  IVitham  v.  Gowen,  14  Maine  362  (1837)  ;  Pay- 
son  V.  Caswell,  22  Maine  212  (1842);  Cloon  v.  Gerrv,  13  Gray  201  (Mass. 
1859),  semhle;  Schnider  v.  Montrose,  158  Mich.  263  (1909);  Booqher  v. 
Hough,  99  Mo.  183  (1889)  ;  Burt  v.  Place.  4  Wend.  591  (N.  Y.  1830),  scmblc : 
and  see  Burt  v.  Smith,  181  N.  Y.  1  (1905)  ;  Grohmann  v.  Kirschman.  168  Pa. 
St.  189  (1895),  semble;  Welch  v.  Boston  &  P.  R.  Corp.,  14  R.  I.  609  (1884)  ; 
Saunders  v.  Baldivin,  112  Va.  431  (1911).  In  Short  v.  Spragins.  104  Ga.  628 
(1898),  an  order  of  a  superior  court  granting  an  injunction  and  appointing 
a  receiver  was  held  to  have  a  similar  effect,  aliter,  where  a  court  merely 
awards  a  temporary  and  provisional  injunction  pendente  lite,  Burt  v.  Smith, 
181  N.  Y.  1  (1905).  A  distinction  is  drawn  in  Indiana  between  a  reversal 
of  the  judgment  of  an  inferior  court  and  such  court's  own  action  in  setting 
aside  a  conviction  before  it  and  granting  a  new  trial,  which  is  said  to  put  the 
case  as  though  it  had  never  been  tried,  so  that  the  conviction  is  no  evidence 
of  probable  cause,  Richter  v.  Koster,  45   Ind.  440    (1874).  _ 

A  distinction  is  also  sometimes  made  between  a  conviction  by  a  magis- 
trate having  power  to  try  the  charge  and  the  action  of  an  examining  or 
committing  magistrate  in  binding  over  or  committing  the  plaintiff,  which 
latter  is  held  to  be  prima  facie  evidence  only,  see  Israel  v.  Brooks,  23  111. 
575  (1860)  ;  Spalding  v.  Lowe,  56  Mich.  366  (1885)  :  Ross  v.  Hixon.  A6  Kans. 
550  (1891),  and  cases  cited  therein;  see  also,  Johnston  v.  Meaghr,  14  Utah 
426   (1894). 

^"If,  upon  a  full  and  fair  trial,  the  evidence  against  the  plaintiff  was  suf- 
.ficient  to  satisfy  the  court  of  his  guilt,  that  circumstance  will  afford  strong 
presumptive  evidence  of  probable  cause" — Waite,  J.  in  Goodrich  v.  Warner. 
"If,"  says  Williams,  J.,  in  Nicholson  v.  Sternberg,  "the  case  is  so  weak  that 
the  defendant  would  be  charged  with  want  of  probable  cause  in  the  absence 
of  the  decision  of  the  justice,  all  rights  the  defendant  is  entitled  to  will  be 
secured  to  him  by  making  the  decision  prima  facie  evidence  of  probable 
cause,  and  requiring  the  plaintiff  to  overcome  this  prima  facie  case,  and  leav- 
ing the  whole  question  of  fact  to  the  jury."  In  Moffatt  v.  Fisher,  47  Iowa 
473  (1877)  ;  Olson  v.  Neal.  63  Iowa  214  (1884),  and  Nehr  v.  Dobbs,  it  was 
held  that  the  prima  facie  effect  of  a  conviction  as  of  probable  cause  could  be 
rebutted  by  showing  that  it  was  due  to  an  error  of  law  on  the  part  of  the 
judge,  justice,  or  magistrate,  while  in  Bechel  v.  Pac.  etc.  Co.,  committal  by 
examining  magistrate,  Maynard  v.  Sigman,  65  Nebr.  590  (1902),  a  conviction 
by  justices,  it  was  said  to  be  rebuttable  by  any  evidence  which  destroyed  its 


SKEFFINGTON    V.    EYLWARD.  102/ 

It  is  difficult  to  see  any  substantial  distinction  between  the  first 
and  second  class  of  cases  to  which  we  have  referred.*     If  the  pre- 


probative  value,  while  in  Barber  v.  Scott,  it  was  held  that  a  verdict  for  the 
plaintiff  would  stand,  though  he  had  been  convicted  by  a  justice  of  the  peace, 
if  the  jury  could  properly  find  that  the  defendant  knew  all  the  material  facts 
and  they  were  insufficient  in  law  to  support  the  charge,  so  that  he  must  be 
taken  to  know  their  insufficiency.  In  McDonald  v.  Schroeder,  214  Pa.  St.  411 
(1906),  it  was  held  that  where  the  defendant  admitted  on  the  trial  of  the 
original  prosecution  that  he  brought  it  for  the  improper  purpose  of  collect- 
ing a  debt  due  by  the  plaintiff,  is  bound  to  show  that  he  had  probable  cause 
to  believe  him  giiilty  of  the  crime  charged  notwithstanding  the  fact  that  he 
had  been  convicted. 

In  many  jurisdictions  the  plaintiff's  discharge  by  a  justice  of  the  peace 
or  committing  magistrate  is  held  to  be  prima  facie  evidence  of  want  of  prob- 
able cause,  Barnholdt  v.  Sotiillard,  Z6  La.  Ann.  103  (1884)  ;  Frost  v.  Hol- 
land, 75  Maine  108  (1883)  ;  Straus  v.  Young,  36  Md.  246  (1872)  ;  Thomas  v. 
Smith,  51  Mo.  App.  605  (1892);  Stuhbs  v.  Mulholland,  168  Mo.  47  (1902), 
at  least  when  coupled  with  proof  of  the  plaintiff's  good  character;  Johnston 
V.  Martin,  3  Murph.  248  (N.  Car.  1819)  ;  Rosenkrana  v.  Haas,  20  N.  Y.  S. 
880  (1892)  ;  Bernar  v.  Dunlap,  94  Pa.  329  (1880),  unless  the  evidence  pro- 
duced by  the  plaintiff  shows  that  the  defendant  had  reasonable  ground  to 
believe  the  plaintiff  guilty;  Madison  v.  R.  Co.,  147  Pa.  St.  509  (1892); 
Barhight  v.  Tammany,  158  Pa.  St.  545  (1893),  aliter  when  discharge  is  be- 
cause of  the  magistrate's  lack  of  jurisdiction,  McClafferty  v.  Philp,  151  Pa. 
St.  86  (1892);  Williams  v.  Norwood,  2  Yerg.  329  (Tenn.  1829);  Jones  v. 
Finch,  84  Va.  204  (1887)  ;  Vinal  v.  Core,  18  W.  Va.  1  (1881)  ;  Eggett  v.  Al- 
len, 119  Wis.  625  (1903)  ;  Chapman  v.  Dodd,  10  Minn.  350  (1865),  if  solely 
upon  the  defendant's  testimony,  aliter  if  after  both  sides,  Cole  v.  Curtis,  16 
xMinn.  182  (1870)  ;  accord:  Barbour  v.  Gettings,  26  U.  C.  Q.  B.  544  (1867)  ; 
see  also,  Flickinger  v.  Wagner,  46  Md.  580  (1877),  where  a  discharge  by  a 
magistrate,  unable  to  decide  on  conflicting  testimony  and  giving  the  accused 
the  benefit  of  the  doubt,  held  not  to  make  a  prima  facie  case.  Contra:  Hark- 
radcr  v.  Moore,  44  Cal.  144  (1872);  Israel  v.  Brooks,  23  111.  575  (1860); 
IVright  v.  Fansler,  90  Ind.  492  (1883);  Davis  v.  McMillan,  142  Mich.  391 
(1905)  ;  Heldt  v.  Webster,  60  Tex.  207  (1883).  The  fact  that  the  grand  jury 
ignores  the  bill  is  held  in  Apgar  v.  Woolston,  43  N.  J.  L.  57  (1881),  and  Le 
Maistre  V.  Hunter,  Brightly  N.  P.  494  (Pa.  1851),  to  be  no  evidence  of  want 
of  probable  cause. 

On  the  other  hand  an  acquittal  after  the  trial  is  generally  held  neither 
to  make  a  prima  facie  case  shifting  the  burden  of  proof  nor  to  be  of  itself 
sufficient  evidence  to  support  a  verdict  for  the  plaintiff,  Thompson  v.  Bea- 
con Valley  Co.,  56  Conn.  493  (1888)  ;  Bitting  v.  Ten  E\ck,  82  Ind.  421  (1882)  ; 
Garrard  v.  Willet,  4  J.  J.  Marsh.  628  (Ky.  1830),  where,  however,  the  plain- 
tiff had  been  committed  for  trial  bv  a  magistrate ;  Stone  v.  Crocker,  24  Pick. 
81  (Mass.  1831)  ;  Britton  V.  Granger,  13  Ohio  C.  C.  281  (1897)  ;  Eastman  v. 
Monnastcs,  32  Ore.  291  (1898).  And  this  is  so  even  in  jurisdictions  hold- 
ing that  a  discharge  by  an  examining  magistrate  makes  out  a  prima  facie 
case,  Staiib  v.  ]'an  Benthuvsen,  36  La.  Ann.  467  (1884)  ;  Boeger  v.  Langen- 
berg,  97  Mo.  390  (1888)  ;  Christian  v.  Hanna,  58  Mo.  App.  37  (1894)  ;  Bell 
V.  Pearcy,  11  Ired.  233  (N.  Car.  1850)  ;  and  see  ]'inal  v.  Core,  supra,  and  Hale 
V.  Boylen,  22  W.  Va.  234  (1883);  contra,  Whitfield  v.  Westbrook,  40  Miss. 
311  (1866),  and  Miller  v.  Hammer,  141  Pa.  St.  196  (1891).  with  which,  how- 
ever, compare  Grnhmann  v.  Kirschman,  168  Pa.  St.  189  (1895).  In  some  jur- 
isdictions it  is  held  to  be  no  evidence  of  want  of  probable  cause,  Skidmore  v. 
Bricker,  77  111.  164  (1875)  ;  Bekkeland  v.  Lyons,  96  Tex.  255  (1903),  6-1  L. 
R.  A.  474  with  valuable  note;  Stewart  v.  Sonneborn,  98  U.  S.  187  (1878), 
semble. 

'  In  some  jurisdictions  a  conviction  is  conclusive  though  procured  by 
fraud,  false  testimony  or  by  preventing  the  accused  producing  exculpatory 
facts,  known  by  the  defendant  to  exist,  Clements  v.  Odorless  etc.  Co.,  67  Md. 
461   (1887),  Bryan,  J.,  diss.,  p.  605;  Parker  v.  Huntington,  7  Gray  36  (Mass. 


I028  ■  RAVENGA   V.    MACKINTOSH. 

sumption  of  probable  cause,  arising  from  a  judgment  in  the  first 
instance  which  is  reversed  on  appeal,  can  only  be  rebutted  by  alleg- 
ing and  proving  that  the  judgment  was  obtained  by  fraud  or 
perjury,  then  the  judgment  is  practically  conclusive  evidence  of  a 
probable  cause,  because  any  judgment,  although  it  imports  absolute 
verity,  may  be  impeached  for  fraud  or  perjury  in  a  proper  action 
or  proceeding.  The  true  and  logical  reason  why  a  conviction,  re- 
versed on  appeal  and  the  defendant  discharged,  is  relevant  evidence 
on  the  issue  of  probable  cause,  is  not  that  the  judgment  imports  ab- 
solute verity ;  for,  after  the  reversal  and  discharge  there  is  in  fact 
and  law  no  judgment.  The  true  reason,  as  stated  in  the  case  of 
Nehr  v.  Dobbs,  supra,  is  the  fact  that,  ordinarily,  if  a  court  having 
jurisdiction  has  upon  a  full  and  fair  trial  proceeded  to  conviction, 
it  must  have  had  before  it  such  evidence  as  would  convince  a  pru- 
dent and  reasonable  man  of  the  guilt  of  the  accused.  Therefore, 
while  a  subsequent  reversal  may  show  that  the  accused  was  in  fact 
innocent,  yet  it  does  not  show  that  there  was  no  probable  cause  for 
believing  him  guilty. 

If  such  be  the  basis  for  receiving  in  evidence  a  judgment,  which 
has  been  reversed,  on  a  trial  of  the  question  of  probable  cause,  it 
logically  follows  that  it  is  not  conclusive,  but  prima  facie,  evidence 
of  probable  cause,  which  is  entitled  to  serious  consideration  in  deter- 
mining the  issue.  It  follows  that,  the  presumption  arising  from  such 
evidence  being  a  rebuttable  one.  the  evidence  to  rebut  it  cannot  be 
limited  to  a  direct  impeachment  of  the  judgment  for  fraud  or  per- 
jury, but  that  any  competent  evidence  is  admissible  which  tends  to 
show  that  the  prosecutor  did  not  have  probable  cause.  We  accord- 
ingly hold  that,  in  an  action  for  malicious  prosecution,  a  conviction 
of  the  plaintiff,  which  was  reversed  on  appeal  and  the  plaintiff  dis- 
charged, is  not  conclusive,  but  strong  prima  facie,  evidence  of  prob- 
able cause,  which  may  be  rebutted,  not  only  by  evidence  tending  to 
show  that  the  conviction  was  obtained  by  fraud  or  perjury,  but  also 
by  any  competent  evidence  which  satisfies  the  jury  that  the  prose- 
cutor did  not  have  probable  cause  for  instituting  the  prosecution. 

Order  affirmed. 


RAVENGA  V.  MACKINTOSH. 

Court  of  King's  Bench,  1824.    2  Barnewall  &  Cresswell  693. 

The  Lord  Chief  Justice  directed  the  jury  to  find  a  verdict  for 
the  defendant,  if  they  were  of  opinion  that,  at  the  time  when  the 
arrest  was  made.  Mackintosh  acted  truly  and  sincerely  upon  the 
faith  of  the  opinion  given  by  his  professional  adviser,  actually  be- 
lieving that  Ravenga  was  personally  liable,  and  that  he  might  be 
lawfully  arrested,  and  that  he  (Mackintosh)  could  recover  in  that 
action ;  but  to  find  for  the  plaintiff,  if  they  were  of  opinion  that 


1856),  but  compare  Cloon  v.  Gerrv,  13  Gray  (Mass.)  201;  Griffis  v.  Sellars, 
2  Dev.  &  B.  492  (N.  Car.  1837)  ;  Smith  v.  Thomas.  149  N.  Car.  100  (1908), 
semble. 


RAV'EXGA    Z'.    MACKIXTOSH.  IO29 

Mackintosh  believed  that  lie  must  fail  in  the  action,  and  that  he  in- 
tended to  use  the  opinion  as  a  protection,  in  case  the  proceedings 
were  afterwards  called  in  question  ;  and  that  he  made  the  arrest,  not 
with  a  view  of  obtaining  his  debt,  but  to  compel  the  plaintiff  to  sanc- 
tion his  debentures.  The  jury  found  a  verdict  for  the  plaintiff  with 
£250  damages. 

The  Attorney-General  now  moved  for  a  new  trial. 

Bayley  J.  I  have  no  doubt  that  in  this  case  there  was  a  want 
of  probable  cause.  I  accede  to  the  proposition,  that  if  a  party  lays 
all  the  facts  of  his  case  fairly  before  counsel,^  and  acts  bona  fide 
upon  the  opinion  given  by  that  counsel-  (however  erroneous  that 
opinion  may  be)^  he  is  not  liable  to  an  action  of  this  description.  A 
party,  however,  may  take  the  opinions  of  six  different  persons,  of 

^Accord:  Steed  v.  Knowles,  79  Ala.  446  (1885);  Ross  v.  Innis,  35  111. 
487  (1864)  ;  Smith  v.  Walter,  125  Pa.  St.  453  (1889)  ;  Stewart  v.  Sonncborn, 
98  U.  S.  187  (1878);  Tompson  v.  Mnssex,  3  Maine  305  (1825);  Cooper 
V.  Utterbach,  Zl  Md.  282  (1872)  ;  Wakely  v.  Johnson,  115  Mich.  285  (1897)  ; 
Bell  V.  Atlantic  Citv  R.  Co.,  58  N.  J.  L.  227  (1895)  ;  Radcliffe  v.  HoUxfield, 
216  Pa.  367  (1907),  see  Barhight  v.  Tammany,  158  Pa.  St.  545  (1893). 
As  to  the  effect  of  failure  to  state  facts  in  the  bona  fide  but  mistaken  belief 
that  they  are  not  material,  compare  Hill  v.  Palm,  38  Mo.  13  (1866)  ;  Sharpe  v. 
Johnston,  59  Mo.  557  (1875),  and  Duiilap  v.  New  Zealand  Fire  &c.  Ins.  Co., 
109  Cal.  365  (1895),  with  Baldwin  v.  Weed,  17  Wend.  224  (N.  Y.  1837),  and 
Harris  V.  Woodford,  98  Mich.  147  (1893).  Many  jurisdictions  hold  that  he 
must  disclose  also  facts  which  he  could  have  discovered  had  he  used  reasonable 
diligence,  Steed  v.  Knowles,  79  Ala.  446  (1885)  ;  Wyatt  v.  Burdette,  43  Colo. 
208  (1908);  Ross  v.  Innis,  35  111.  487  (1864)  ;  Gallowav  v.  Stewart,  49  Ind. 
156  (1874)  ;  Dorr  Cattle  Co.  v.  Dcs  Moines  Nat.  Bank,  127  Iowa  153  (1905)  ; 
Stevens  v.  Fassett,  27  Maine  266  11847)  ;  Stubbs  v.  Mulholland,  168  Mo. 
47  (1902)  ;  Carp  v.  Queen  Insurance  Co.,  203  Mo.  295  (1907),  and  see  Moore 
V.  R.  Co.,  Z7  Minn.  147  (1887),  and  Johnson  v.  Miller,  69  Iowa  562  (1886). 
Contra,  Diinlap  v.  New  Zealand  Fire  &c.  Ins.  Co.,  109  Cal.  365  (1895)  ; 
Gillispie  v.  Stafford,  96  N.  W.  1039  (Nebr.  1903);  Hess  v.  Oregon  German 
Baking  Co.,  31  Ore.  503  (1897)  ;  King  v.  Apple  River  Power  Co.,  131  Wis. 
575  (1907).  If  the  defendant,  subsequent  to  the  consultation,  learn  of  ma- 
terial facts  he  cannot  rely  on  the  advice  seriously  received  as  a  protection, 
Diinlap  V.  New  Zealand  Fire  &c.  Insurance  Co.,  109  Cal.  365  (1895):  Ash 
V.  Marlow,  20  Ohio  119  (1851),  and  for  a  full  citation  and  valuable  discus- 
sion of  the  American  decisions  on  these  points  and  the  whole  subject  of  the 
principal  case  see  the  notes  to  Van  Meter  v.  Bass,  18  L.  R.  A.  (N.  S.)  49 
(1909). 

-Accord:  McLcod  v.  McLeod,  72>  Ala.  42  (1882);  Clement  v.  Major, 
8  Colo.  App.  86  (1896)  ;  Ross  v.  Innis,  35  111.  487  (1864)  ;  Kimmel  v.  Henry, 
64  111.  505  (1872),  prosecution  instituted  for  improper  purpose;  Fisher  v. 
Forrester,  Z3  Pa.  501  (1859)  ;  Neufeld  v.  Rodeminski,  144  111.  83  (1893).  See 
also,  the  cases  collected  in  1§  L.  R.  A.  (N.  S.)  62  to  65.  An  opinion  given 
after  the  prosecution  is  of  course  no  justification  therefor.  Blunt  v.  Little, 
3  Mason  102  (U.  S.  1822)  ;  Murphy  v.  Eidlits,  121  App.  Div.  224  (N.  Y. 
1907),  but  see  Hopkins  v.  McGillicuddy,  69  Maine  273  (1879). 

The  advice  of  counsel  affords  no  protection  if  the  defendant  in  fact  does 
not  believe  the  plaintiff  guilty,  Stewart  v.  Sonneborn,  98  U.  S.  187  (1878); 
Dawson  v.  Schloss,  93  Cal.  194  (1892);  Connelly  v.  White,  122  Iowa  391 
(1904) ;  Hyde  v.  Greuch,  62  Md.  577  (1884)  ;  Haas  v.  Powers,  130  Wis.  406 
(1906);  Harris  v.  Woodford.  98  Mich.  147  (1893);  Sparling  v.  Conwav  75 
Mo.  510  (1882).  and  see  18  L.  R.  A.  (N.  S.)  63-64. 

'Accord:  Steed  v.  Knowles,  79  Ala.  446  (1885)  ;  Neufeld  v.  Rodeminski, 
144  111.  83  (1893);  Paddock  v.  Watts,  116  Ind.  146  (1888);  Fleckingcr  v 
faffee,  149  Mich.  678  (1907);  Cooper  v.  Flemming,  114  Tenn.  40  (1904), 
especially   if   the   persons    consulted   are   prosecuting   officers    of    the    state! 


1030  RAVENGA    V.    MACKINTOSH. 

which  three  are  one  way  and  three  another.*  It  is  therefore  a  ques- 
tion for  the  jury,  whether  he  acted  bona  fide  on  the  opinion,  behev- 
ing  that  he  had  a  cause  of  action.  The  jury  in  this  case  have  found, 
and  there  was  abundant  evidence  to  justify  them  in  drawing  the 
conclusion,  that  the  defendant  did  not  act  bona  fide,  and  that  he  did 
not  beheve  that  he  had  any  cause  of  action  whatever.  Assuming 
that  the  defendant's  behef  that  he  had  a  cause  of  action  would 
amount  to  a  probable  cause,  still,  after  the  jury  have  found  that  he 
did  not  believe  that  he  had  any  cause  of  action  wdiatever,  the  judge 
would  have  been  bound  to  say,  that  he  had  not  reasonable  or  prob- 
able cause  of  action. 

Rule  refused. ° 


Laughlin  v.  Clawson,  27  Pa.  328  (1856)  ;  Smith  v.  Austin,  49  Mich.  286 
(1882)  ;  Amhs  v.  A.  T.  &  S.  F.  R.  Co.,  114  Fed.  317  (1899).  In  Hazzard  v. 
Fliiry,  120  N.  Y.  223  (1890),  Parker,  J.,  held  that  the  fact  that  the  defendant's 
counsel  may  have  mistakenly  advised  him  "while  proper  on  the  question  of 
malice,  does  not  form  the  basis  for  a  finding  of  fact  that  he  had  probable 
cause  to  believe  the  plaintiff  guilty  of  larceny.  Probable  cause,"  he  says, 
"may  be  founded  on  misinformation  as  to  the  facts  but  not  as  to  the  law ;" 
and  see  Lange  v.  ///.  Cent.  R.  Co.,  107  La.  687  (1902).  The  Georgia  Civil 
Code  of  1910,  §  4958,  makes  the  defendant  responsible  for  acting  on  er- 
roneous legal  advice  and  gives  him  an  action  over  against  his  adviser,  Luke 
V.  Hill,  137  Ga.  159  (1911).  On  the  whole  subject  see  18  L.  R.  A.  (N.  S.) 
67-68.  Nor  is  the  defendant  responsible  for  the  bad  faith  of  his  legal  ad- 
viser, Peterson  v.  Toner,  80  Mich.  350  (1890),  unless  the  two  are  in  collu- 
sion. Watt  v.  Corey,  76  Maine  87  (1884),  or  knows  he  that  it  is  given  in  bad 
faith,  Shea  v.  Cloquet  Lumber  Co.,  92  Minn.  348  (1904),  or  is  the  adviser 
known  to  be  prejudiced  and  partial,  Smith  v.  King,  62  Conn.  515  (1893),  and 
see  18  L.  R.  A.  (N.  S.)  66. 

*See  Stevens  v.  Fassett,  27  Maine  266  (1847). 

°  The  advice  must  be  given  by  a  practicing  law}-er  of  good  reputation 
for  competency  and  integrity,  Marks  v.  Hastings,  101  Ala.  165  (1892); 
Clement  V.  Major,  8  Colo.  App.  86  (1896)  ;  Walter  v.  Sample,  Schattgen  v. 
Holnbaek,  149  111.  646  (1894);  Sttibbs  v.  Mulholland,  168  Mo.  47  (1902); 
Heath,  J.,  m  Hewlett  v.  Crxichley,  5  Taunt.  277  (1813).  The  mere  fact  that 
the  adviser  is  admitted  to  the  bar  or  has  a  state  license  to  practice  law  is 
not  enough,  Roy  v.  Goings,  112  111.  656  (1885);  Stiibbs  v.  Mulholland,  168 
Mo.  47  (1902).  The  public  prosecuting  attorney  is  of  course  a  proper  person 
upon  whose  advice  to  rely.  Cooper  v.  Fleming,  114  Tenn.  40  (1904)  ;  Gilbert- 
son  v.  Fuller,  40  Minn.  413  (1889),  but  the  advice  of  the  defendant's  regular 
counsel  will  protect  him,  Kansas  etc.  Co.  v.  Galloway,  71  Ark.  351  (1903). 
unless  his  previous  connection  with  the  matter  or  person's  interest  is  such 
as  to  indicate  that  he  is  prejudiced,  Perrenoud  v.  Helm,  65  Nebr.  77  (1902)  ; 
Charles  City  Plow  &c.  Co.  v.  Jones,  71  Iowa  234  (1887)  ;  White  v.  Carr,  71 
Maine  555  (1880).  But  if  the  defendant  is  himself  a  lawyer  his  own  advice  to 
himself  is  of  course  no  defense,  Buck  &  Son  Lumber  Co.  v.  Atlantic  Lumber 
Co.,  121  Fed.  233  (1903);  Terre  Haute  &  /.  R.  Co.  v.  Mason,  148  Ind.  578 
(1897).  The  advice  of  a  justice  of  the  peace  or  magistrate,  if  a  lavman,  is  no 
protection,  Necker  v.  Bates,  118  Iowa  545  (1902)  ;  Olmstead  v.  Partridge,  16 
Gray  381  (Mass.  1860);  but  see  Monaghan  v.  Cox,  155  Mass.  487  (1892); 
Brobst  V.  Ruff,  100  Pa.  St.  91  (1882)  ;  Beihofer  v.  Loeffert,  159  Pa.  St.  374 
(1893)  ;  but  in  Monaghan  v.  Cox,  155  Mass.  487  (1892).  it  was  held  that  such 
advice  is  evidence  of  probable  cause.  For  a  valuable  collection  of  cases  on 
the  whole  subject,  see  18  L.  R.  A.  (N.  S.)  69-74. 

The  majority  of  jurisdictions  regard  the  advice  of  counsel  as  proof  of 
probable  cause,  Stewart  v.  Sonneborn,  98  U.  S.  187  (1878)  ;  Jordan  v.  Ala. 
G.  S.  R.  Co.,  81  Ala.  220  (1886)  ;  Olmstead  v.  Partridge,  16  Gray  381  (Mass. 
1860)  ;  Cooper  v.  Fleming,  114  Tenn.  40  (1904)  ;  in  others  it  is  regarded  as 
only  evidence  of  the  absence  of  malice,  Smith  v.  Glynn,  144  S.  W.  149  (Mo. 


>  JOHNS    r.    MARSH.  IO3I 

JOHNS  V.  MARSH. 

Coiirt  of  Appeals  of  Maryland,  1879.    52  Md.  Rep.  323. 

Alvey,  T-  While  the  malice  necessary  to  the  right  of  recovery 
may  not  be  deduced  as  a  necessary  legal  conclusion  from  a  mere  act, 
irrespective  of  the  motive  with  which  the  act  was  done,  yet,  any 
motive  other  than  that  of  instituting  the  prosecution  for  the  pur- 
pose of  bringing  the  party  to  justice,  is  a  malicious  motive  on  the 
part  of  the  person  who  acts  under  the  influence  of  it.^  As  was  ac- 
curately stated  by  Mr.  Justice  Parke,  afterwards  Baron  Parke,  in 
the  case  of  Mitchell  v.  Jenkins,  5  B.  &  Ad.,  594,  "the  term  'malice,' 
in  this  form  of  action,  is  not  to  be  considered  in  the  sense  of  spite 
or  hatred  against  an  individual,  but  of  mains  animus,  and  as  denot- 
ing that  the  party  is  'actuated  by  improper  and  indirect  motives." 
If,  for  example,  a  prosecution  is  initiated  upon  weak  and  unsubstan- 
tial ground  for  purposes  of  annoyance,  or  of  frightening  and  coerc- 
ing the  party  prosecuted  into  the  settlement  of  a  demand,  the  sur- 
render of  goods,  or  for  the  accomplishment  of  any  other  object, 
aside  from  the  apparent  object  of  the  prosecution  and  the  vindica- 
tion of  public  justice,  the  party  who  puts  the  criminal  law  in  motion 
under  such  circumstances  lays  himself  open  to  the  charge  of  being 
actuated  by  malice.  Such  motives  are  indirect  and  improper,  and 
for  the  gratification  of  which  the  criminal  law  should  not  be  made 
the  instrument.    Add.  on  Torts,  pp.  594,  613;  2  Greenl.  Ev.,  sec. 

453-' 


App.  1912),  in  others  as  rebutting  the  inference  of  malice  arising  out  of 
the  absence  of  probable  cause,  Brooks  v.  Bradford,  4  Colo.  App.  410  (1894)  ; 
McClafferty  v.  Phelp,  supra;  Lipowica  v.  Jervis,  209  Pa.  315  (1904)  ; 
but  see  Walter  v.  Sample,  supra,  in  others  it  is  regarded  as  going  to  both 
probable  cause  and  malice.  Flora  v.  Russell,  138  Ind.  153  (1894)  ;  Folger  v. 
Washburn,  137  Mass.  60  (1884);  Brinsley  v.  Schuls,  124  Wis.  426  (1905), 
and  see  cases  collected  in  18  L.  R.  A.  (N.  S.)  51-54. 

^  A  suit  is  malicious  if  actuated  by  actual  ill  will,  which  may  be  shown  by 
any  evidence  tending  to  prove  its  existence,  as  threats  made,  Brooks  v.  Jones, 
ZZ  N.  Car.  260  (1850),  Thurston  v.  Wright,  77  Mich.  96  (1889)  ;  or  a  quarrel 
with  plaintiff's  family.  Long  v.  Rodgers,  19  Ala.  321  (1851)  ;  see  also,  Van- 
dcrbilt  V.  Matins,  5  Duer  304  (N.  Y.  1856). 

^Accord:  Metropolitan  Life  Ins.  Co.  v.  Miller,  114  Ky.  754  (1903), 
tnalice  may  be  inferred  from  the  use  of  criminal  process  to  compel  the  plain- 
tiff to  settle  a  disputed  claim,  Whiteford  v.  Henthorn,  10  Ind.  App.  97  (1894)  ; 
Krug  V.  Ward,  77  111.  603  (1875),  or  to  give  up  property,  Grinndl  v.  Stewart, 
32  Barb.  544  (N.  Y.  1860);  Peterson  v.  Reisdorph,  49  Nebr.  529  (1896); 
Callaway  v.  Burr,  Z2  IMich.  332  (1875)  ;  Kelly  v.  Sage.  12  Kans.  109  (1873)  ; 
Cahel  v.  Weisensee,  49  Tex.  131  (1878)  ;  Reed  v.  Loosemore,  197  Pa. 
261  (1900) — but  such  inference  is  merely  one  of  fact  and  can  not  be  rebutted, 
Wenger  v.  Philips.  195  Pa.  St.  214  (1900) — or  to  extort  a  confession  as  to  the 
plaintiff's  supposed  accomplices,  so  as  to  locate  stolen  property,  Biirk  v. 
llowley,  179  Pa.  St.  539  (1897),  but  to  prosecute  for  the  sake  of  making 
the  plaintiff'  an  example  is  not  evidence  of  malice,  Coleman  v.  Allen,  79  Ga. 
637  (1888).  Nor  does  the  fact  that  the  ulterior  object  was  to  force  the  pay- 
ment of  a  debt  conclusively  show  malice  where  the  defendant  was  also  ac- 
tuated by  a  desire  to  bring  the  plaintiff  to  justice,  Williams  v.  Keyes,  9  Colo. 
App.  220  (1897),  Jackson  v.  Linnington,  47  Kans.  396  (1891). 


1032 


SCHOFIELD    v.    FERRERS. 


SCHOFIELD  V.  FERRERS. 

Supreme  Court  of  Pennsylvania,  1864.    47  Penna.  194. 

SxRONd,  J.  But  the  court  instructed  the  jury  that  if  there  was 
not  probable  cause,  they  should  find  for  the  plaintiff.  This  was 
leaving  out  of  view  the  second  essential  to  the  maintenance  of  such 
an  action,  namely,  whether  the  prosecution  was  instituted  mali- 
ciously, a  question  always  for  the  jury,  and  one  which  must  be 
proved  affirmatively  to  entitle  the  plaintiff  to  a  verdict.  It  is  true, 
that  want  of  probable  cause  is  evidence  of  malice,  but  it  is  not 
malice  itself.  It  is  to  be  submitted  to  the  jury  for  them  to  draw  the 
proper  inference.  This  appears  to  be  almost,  if  not  quite,  the  uni- 
versal rule.  How  a  criminal  prosecution  can  be  without  malice, 
when  it  is  instituted  without  probable  cause ;  how  it  can  have  orig- 
inated from  any  other  than  bad  motives,  which  the  law  denominates 
malice,  is  not  very  apparent  in  most  cases,  yet  the  authorities  uni- 
formly hold  that  absence  of  probable  cause  is  only  evidence  of 
malice.  It  has  not  the  force  of  a  legal  conclusion,  and  therefore  the 
existence  of  malice  is  a  fact  to  be  found  by  a  jury.  It  is  true,  there 
are  certain  things  which,  if  proved,  the  law  declares  to  be  conclusive 
evidence  of  malice,  but  mere  want  of  probable  cause  is  not  one  of 
them.  If  aprosecution  be  instituted  for  the  purpose  of  extorting 
money-OT'TDther  propert}^  the  law  implies  malice:  P rough  v.  Entri- 
Jcci'i,  II  Pa.  8i,  andirintlTis^case  the  prosecution  against  the  plaintiff 
tjetow'was  begun  or  continued  to  obtain  a  title  to  the  horse  alleged 
to  have  been  stolen  by  him,  that  fact  was  conclusive  evidence  of 
rnalice,  which  the  jury  were  bound  to  receive  as  such.  Still  it  was 
for  them  to  find  whether  such  was  the  motive  for  the  prosecution. 
This  seems  to  have  been  inadvertently  overlooked  in  the  charge, 
very  probably  because  the  contest  on  the  trial  was  mainly  over  the 
question  whether  there  was  probable  cause  for  the  prosecution. 
For  this  reason  the  judgment  must  be  reversed.^ 


^  The  earlier  cases  seem  to  regard  the  want  of  probable  cause  as  mat- 
ter tending  to  show  the  defendant's  knowledge  that  the  accusation  is  with- 
out foundation,  or  his  lack  of  sincere  belief  in  the  plaintiff's  guilt,  the  ab- 
sence of  which  of  course  makes  the  prosecution  malicious,  see  Redfield, 
C.  J.,  in  Barron  v.  Mason,  31  Vt.  189  (1858),  p.  197,  and  so  as  evidence  from 
which  malice  can  be  inferred,  see  Johnstone y.  Sutton,  1  T.  R.  510  (1785), 
p.  544,  "from  the  want  of  probable  cause,  malice  may  be,  and  most  commonly 
is,  implied,"  "to  support  the  verdict,  there  was  nothing  necessary  to  be  proved, 
but  that  there  was  no  probable  cause,  from  whence  the  jury  might  imply  malice 
and  might  imply  that  the  defendant  knew  there  was  no  probable  cause," 
Ellenborough,  C.  J.,  in  Purcell  v.  McNa)nara,  9  East  361  (1808),  "the  want 
of  probable  cause  may  be  so  strong  and  plain  as  to  amount  to  evidence  of 
malice,"  Shaw,  C.  J.,  in  JVillis  v.  Noyes.  12  Pick.  324  (Mass.  1832),  "The 
groundlessness  of  the  suit  may  in  some  instances  be  so  obvious  and  palpa- 
ble that  the  existence  of  malice  may  be  inferred  from  it."'  Billings  v.  Chapin, 
2  111.  App.  555  (1878),  "malice  might  not  be  inferred  unless  the  charge  is 
wilfully  false",  see  also,  Storv,  T..  in  IVigqin  v.  Coffin.  3  Storv  1  (1836), 
and  Bicknell,  C.  C,  in  Bitting  v.  Ten  Eyck,  82  Ind.  421  (1882).  On  the 
other  hand  it  is  said  in  some  cases  that  "the  want  of  proper  motive  inferrable 
from  a  wrongful  act,  (a  prosecution  in  fact  enforced)  based  on  no  reasonable 


OUTH    ROVALTON    BANK    t'.    SUFFOLK    BANK.  IO33 


THE  SOUTH  ROYALTON  BANK  v.  THE  SUFFOLK  BANK. 

Supreme  Court  of  Vermont,  1854.    27  J't.  505. 

Bennett,  J.  '  This  case  comes  up  upon  a  general  demurrer  to 
the  plaintiff's  declaration)  and,  of  course,  the  only  question  ■',  is 
•(  whether  a  legal  cause  of  action  is  set  out  in  the  declaratioli>^  It  may 
with  truth  be  said,  that  an  attempt  to  maintain  an  action  upon  the 
facts  stated  in  the  declaration  is  novel;  but  this  does  not  prove  con- 
clusively that  the  action  cannot  be  sustained  in  this  age  of  progress. 
The  facts  stated  in  the  declaration  are  briefly  that  ^the  plaintiffs, 
being  a  banking  corporation,  had  put  in  circulation  a  large  amount 
of  their  bills,  and  the  bills  would  have  had  a  continued  and  extended 
circulation,  had  it  not  been  for  the  acts  of  the  defendants,  to  the 
great  gain  and  profit  of  the  plaintiffs ;  and  that  the  Suffolk  Bank 
bought  them  up  from  time  to  time  and  have  refused  again  to  ex- 
change them  for  other  money,  and  kept  them  out  of  circulation  ;  and 
have  called  upon  and  compelled  the  plaintiffs  to  redeem  the  bills  in 
specie^' 

The  declaration  charges  that  the  acts  of  the  defendants  were 
performed  with  zvicked  and  corrupt  motives,  and  with  an  intent  to 
injure,  oppress  and  embarrass  the  plaintiffs  in  their  business,  where- 
by they  have  been  damnified  in  their  business,  harassed,  oppressed, 
and  deprived  of  great  gains,  as  they  say,  which  they  otherwise 
would  have  made,  to  wit,  ten  thousand  dollars)  It  is  hardly  neces- 
sary to  say  that  the  plaintiffs  issued  their  bills  as  a  circulating  me- 
dium in  lieu  of  specie  currency,  and  that  it  was  the  right  of  the  de- 
fendants, in  common  with  others,  to  purchase  in  their  bills,  and 
thus    withdraw    them    from   circulation,   until   they   should   choose 

ground,  constitutes  of  itself  all  the  malice  deemed  essential  in  law  to  the 
maintenance  of  the  action,"  Daniel,  J.,  in  Spcngler  v.  Davy,  15  Grat.  381 
(Va.),  and  see  accord:  to  the  effect  that  the  jury  may,  but' are  not  legally 
bound  to,  infer  malice  from  want  of  probable  cause  if  they  find  the  latter 
to  exist,  Stewart  V.  Sonneborn,  98  U.  S.  187  (1878);  Vanderbilt  v.  Matins 
5  Duer  304  (N.  Y.  1856)  ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Hollcdav,  30  Okla 
680  (1912)  ;  Pohlman  v.  Chicago,  M.  &  St.  P.  R.  Co.,  131  Iowa "89  (1906), 
and  the  multitude  of  cases  cited  in  the  American  Digest,  Cent.  Ed.,  Vol.  33, 
1880-1882,  Decennial  Ed.,  Vol.  12,  Malicious  Prosecution,  §  32;  but  see 
Sharpe  v.  Johnston,  76  Mo.  660  (1882),  to  the  effect  that  malice  cannot  be 
directly  inferred  from  want  of  probable  cause  though  the  former  may  be  in- 
ferred from  the  same  circumstances  which  go  to  establish  the  latter.  The 
inference  is  enough  unless  explained  to  carrv  the  case  to  the  jury,  Madison 
V.  P.  R.  Co.,  147  Pa.  St.  509  (1902),  though  the  court  will  nonsuit  if  the  evi- 
dence produced  by  the  plaintiff  itself  proves  the  defendant's  lack  of  malice 
Madison  v.  P.  R.  Co.,  147  Pa.  St.  509  (1902).  Lack  of  probable  cause  mav. 
however,  not  to  be  inferred  from  malice,  Johnstone  v.  Sutton,  and  cases  cited, 
supra.  Steed  v.  Knowles,  79  Ala.  446  (1885),  but  see  Prouah  v.  Entriken 
11  Pa.  81  (1849);  MacDonald  v.  Schrocdcr,  214  Pa.  St.  411  (1906),  hold- 
mg  that  where  the  defendant  has  instituted  criminal  proceedings  for  the 
purpose  not  of  bringing  a  supposed  criminal  to  justice,  but  to  force  him  to 
pay  a  debt,  whether  justly  due  or  not,  the  burden  of  proving  probable  cause 
is  shifted  to  him,  compare  Mayer  v.  Walter,  64  Pa.  283  (1870).  and  Grainger 

''/,^l!i'  ^  ^'"^-  ^^-  ^-  2^2  (1838),  and  see  Bonney  v.  King,  103  111.  App.  601 
(1902). 


I034  SOUTH    ROYALTOX    BANK    V.    SUFFOLK    BANK. 

again  to  put  them  in  circulation  or  call  upon  the  plaintiffs  to  redeem 
their  promise  by  the  payment  of  their  bills  in  specie. 

.  The  defendants  are  not  charged  with  doing  any  act  in  itself 
cons"idered  wrong;  but  it  is  attempted  to  make  the  acts  actionable 
by  reason  of  the  bad  motive  imputed  to  the  defendants  in  doing  them.y 
This  case,  seems  to  us,  but  an  ordinary  one  of  a  creditor  calling 
upon  his  debtor  for  his  pay,  at  a  time,  and  at  a  place,  and  in  a  man- 
ner to  which  the  debtor  has  no  right  to  make  objection.  It  was 
morally  and  legally  the  duty  of  the  plaintiffs  at  all  times  to  be  ready 
and  willing  to  redeem  their  bills,  and  it  has  operated  to  their  injury 
to  be  called  upon  at  any  particular  time  to  redeem  a  particular 
amount,  it  is  "damnum  absque  injuria."  Here  was  no  unlaivful 
conspiracy  by  the  defendants  with  others,  either  to  do  a  lawful  act 
in  an  unlawful  manner,  or  an  unlawful  act  to  the  injury  of  the 
plaintiffs ;  but  the  declaration  charges,  in  effect,  that  the  acts  were 
done  from  bad  motives  in  the  defendants.  This,  we  think,  is  not 
enough.  Motive  alone  is  not  enough  to  render  the  defendants  liable 
for  doing  those  acts,  which  they  had  a  right  to  do.  It  is  too  well 
settled  to  need  authority  that  malice  alone  will  not  sustain  an  action 
for  a  vexatious  suit.  There  must  also  be  w^ant  of  probable  cause. 
This  principle  is  enough  to  settle  this  case.  If  the  defendants  could 
not  be  sued  for  instituting  suits  maliciously  to  collect  pay  upon  the 
plaintift''s  bills  which  they  lawfully  held,^  much  less  could  they  be 


\4ccord:  Buck  v.  Latham,  110  :^Iinn.  523  (1910),  the  defendant  in  an 
action  on  a  promissor}-  note  alleged  by  way  of  counter  claim  that  the  plain- 
tifif  had  bought  the  note  and  instituted  suit  thereon,  not  for  the  purpose  of 
serving  any  interest  of  his  own  but  for  the  sole  purpose  of  harassing  and  op- 
pressing the  defendant.  These  allegations  were  held  to  show  no  cause  of 
action:  O'Brien  v.  Barry,  106  iNIass.  300  (1871):  Jcnhins  v.  Fowler,  24  Pa. 
308  (1855),  semble;  Hamilton  v.  Windolf,  36  IMd.  301  (1852)  ;  Stevenson  v. 
Newnham,  U  C.  B.  285  (1853)  ;  Fricl  v.  Plumer,  69  N.  H.  498  (1898),  semble. 
Nor  is  it  a  defense  to  an  action  of  trespass  that  it  was  one  of  a  number  of 
civil  and  criminal  actions  instituted  against  the  defendant  brought  to  harass 
him  and  force  him  to  leave  the  neighborhood,  Jacobson  v.  Van  Bocning,  48 
Nebr.  80  (1896),  or  to  an  action  to  collect  a  valid  debt  that  the  creditor  has 
not  selected  the  least  troublesome  and  expensive  process  for  its  collection, 
Anthes  v.  Schroeder,  74  Xebr.  172  (1905). 

So  it  is  not  unlawful  for  a  mortgagee  to  foreclose  an  overdue  mortgage 
though  he  deliberately  does  so  at  a  time  when,  the  debtor  being  temporarily 
embarrassed,  the  insistence  on  his  legal  right  will  ruin  the  debtor  and  this 
Avhether  his  purpose  is  to  acquire  the  property  at  a  price  below  its  value, 
Morris  v.  Tuthill,  72  X.  Y.  575  (1878),  or  to  ruin  the  creditor  without  benefit 
to  himself,  Randall  v.  Hadcton,  12  Allen  412  (Mass.  1866),  p.  415:  Madden, 
C.  J.,  in  Martell  v.  Victorian  Coal  Miners'  Assn.,  29  Vict.  L.  R.  475  (1903), 
p.  510. 

Xor  wiU  the  motives  of  the  former  holder  of  a  mortgage,  negotiable 
instrument  or  assignable  chose  in  action  in  selling,  or  of  the  purchaser  in 
buying,  defeat  a  subsequent  action  thereon  or  make  the  sale  or  purchase  an 
actionable  wrong,  Morris  v.  Tuthill,  supra,  Randall  v.  Hacleton,  supra. 

Under  the  law  of  France  and  Quebec,  one  guilty  of  abuse  of  his  right 
to  litigate  even  a  well-founded  claim  may  be  liable  in  damages,  F.  P.  Wal- 
ron,  Esq.,  22  Harv.  L.  R.  501,  p.  508  and  notes  4  and  5. 

And  see  on  this  point  as  well  as  on  the  right  of  a  landowner  to  secure 
his  property  from  unlawful  interference  or  intrusion  and  for  a  very  valuable 
discussion  of  the  whole  subject,  the  essay  by  the  late  Professor  James  Barr 
Ames  on  "How  far  an  Act  may  be  a  Tort  because  of  the  Wrongful  ]\Iotive 


NEWTOX    Z'.    WEAVER.  IO35 

sued  for  simply  calling  upon  the  defendants  for  pay,  without  the 
intervention  of  a  suit,  though  done  tvith  malice. 

The  result  is,  the  judgment  of  the  county  court  is  affirmed. 


(a)   Guilt  of  person  prosecuted  and  acquitted. 


NEWTON  V.  WEAVER. 
Supreme  Court  of  Rhode  Island,  1882.     13  Rhode  Island,  616. 

Matteson,  J.  This  is  an  action  of  the  case  for  malicious  prose 
cution.  The  prosecution  alleged  to  have  been  malicious  was  an  ac- 
tion of  trover,  brought  against  the  plaintiff  by  the  defendant,  for 
the  conversion  of  a  quantity  of  hardware  and  other  materials,  sold 
to  the  plaintiff  by  the  defendant,  to  be  used  in  the  erection  of  cer- 
tain dwelling-houses,  which  the  plaintiff  was  engaged  in  building. 
At  the  trial  of  the  present  action  the  defendant  offered  to  show,  by 
examination  of  the  plaintiff  and  another  witness,  certain  facts  tend- 
ing to  prove  that  the  plaintiff -p.urdiased  the  goods  with  the  in- 
tent not  to  pay"tortheni^rLd-so-wa«-§4*iky-©f  the  conversion  of  the 
goods  charged  against  him  in  the  trover  suit.  The  court  excluded 
the  testimony  and  the  defendant  excepted. 

But  though  inadmissible  to  establish  probable  cause,  or  to  rebut 
the  charge  of  malice,  (because  not  known  to  the  defendant  when  he 
brought  the  suit  in  trover^),  we  think  the  testimony  should  have 
been  received.  The  action  for  malicious  prosecution  was  designed 
for  the  benefit  of  the  innocent  and  not. of  the  guilty.  It  matters  not 
whether  there  was  probable  cause  for  the  prosecution,  or  how  ma- 
licious may  have  been  the  motive  of  the  prosecutor,  if  the  accused 
is  guilty  he  has  no  legal  cause  for  complaint.  ,,The  grounds  of  this 
action,  says  Ruffin,  C.  J.  in  Bell  v,  Pearcey,  5  Ired.  83,  84,  quoting 
from  Buller  Nisi  Prius,  14,  have  been  said  to  be  "on  the  plaintiff's 
side,  innocence ;  on  the  defendant's,  malice."  Again,  in  the  same 
case,  page  86,  he  says :  "There  is  no  doubt  that  a  defendant  in  this 
action  may  allege  that  the  plaintilT,  though  acquitted  in  the  prose- 
cution, was  actually  guilty,  and  that  he.may  prove  the  guilt  by  any 
evidence  in  his  power,  though  discovered  after  the  prosecution 
began,  or  after  it  ended.  The  law  does  not  give  the  action  to  a  guilty 
man.  He  brings  it  as  an  innocent  one,  and  if  it  appears  on  the  trial 
in  any  way  that  he  is  not,  he  must  fail.'N  See  also,  Johnson  v.  Cham- 
bers, 10  Ired.  287,  291  ;  Bacon  v.  Toivne,  4.Cush.  217,  241 ;  Barber 
V.  Gould,  2y  N.  Y.  Supreme  Court,  446,  447 ;  Turner  v.  Dimiegar, 
2^  N.  Y.  Supreme  Court,  465,  466.    As  the  testimony  offered  tended 


of  the  Actor,"  18  Harv.  L.  R.  411,  especially  pp.  414-415,  and  for  a  some- 
what different  view  "Privilege,  Malice  and  Intent,"  by  Mr.  Justice  Holmes, 
8  Harv.  L.  R.  1. 

^  A   part   of   the   opinion   is   omitted   holding   that,   for  this   reason,   the 
evidence  was  inadmissible  for  these  purposes. 


1036  NEWTON    V.    WEAV^ER 

to  prove  that  the  plaintiff  was  guihy  of  the  alleged  conversion  of  the 
goods,  and  as  his  guilt,  if  established,  would  have  barred  his  right 
to  recover,  we  think  the  court  erred  in  rejecting  it,  and,  therefore, 
sustain  the  first  three  exceptions.- 


(b)  Abuse  of  process. 


MAYER  V.  WALTER. 
Supreme  Court  of  Pennsylvania,  1870.    64  Penna.  St.  Rep.  283. 

Sharswood,  J.  There  is  a  distinction  between  a  malicious  use 
and  a  malicious  abuse  of  the  legal  process.  An  abuse  is  where  the 
party  employs  it  for  some  unlawful  object,  not  the  purpose  which  it 
is  intended  by  the  law  to  effect ;  in  other  words,  a  perversion  of  it. 
Thus,  if  a  man  is  arrested,  or  his  goods  seized  in  order  to  extort 
money  from  him,  even  though  it  be  to  pay  a  just  claim  other  than 
that  ir  suit,  or  to  compel  him  to  give  up  possession  of  a  deed  or  other 
thing  of  value,  not  the  legal  object  of  the  process,  it  is  settled  that 
in  an  action  for  such  malicious  abuse  it  is  not  necessary  to  prove 
that  the  action  in  which  the  process  issued  has  been  determined,  or 
to  aver  that  it  was  sued  out  without  reasonable  or  probable  cause : 
Grainger  v.  Hill,  4  Bing.  N.  C.  212.  It  is  evident  that  when  such  a 
wrong  has  been  perpetrated,  it  is  entirely  immaterial  whether  the 
proceeding  itself  was  baseless  or  otherwise.  We  know  that  the  law 
is  good,  but  only  if  a  man  use  it  lawfully.^ 

^Accord:  Whitehurst  v.  Ward,  12  Ala.  264  (1847)  ;  Shannon  v.  Sims,  146 
Ala.  673  (1906);  Whipple  v.  Gorsuch,  82  Ala.  252  (1907):  Bniley  v.  Rose. 
57  Iowa  651  (1882)  :  Lancaster  v.  McKaw  103  Kv.  616  (1898)  ;  Thrcefoot  v. 
Nuckols.  68  Miss.  116  (1890)  ;  Morris  x.  Corson',  7  Cow.  281  (N.  Y.  1827)  ; 
Johnson  v.  Chambers,  10  Iredell  287  (N.  Car.  1849),  in  all  of  which  the 
prosecution  terminated  by  the  grand  jury  refusing  to  indict,  the  justice  of 
the  peace  dismissing  the  complaint,  or  in  some  other  way,  before  trial  on 
the  merits  by  a  jury  or  other  bodv  having  final  determination  thereof.  In 
Turner  v.  Dinnegar,  20  Hun  465  (N.  Y.  1880)  ;  Bell  v.  Pcarccv,  b  Iredell  83 
(N.  Car.  1844.)  ;  Parkhurst  v.  Masfeller,  57  Iowa  474  (1881),  w^here  the 
grand  jury  formed  a  true  bill,  and  Mack  v.  Sharp,  138  Mich.  448  (1904), 
the  final  termination  of  the  prosecution  does  not  appear,  though  in  Mack  v. 
Sharp,  the  plaintiff  is  said  to  have  been  "acquitted," ^and  in  Parkhurst  v.  Mas- 
teller,  the  court  says  that  "the  defendant  may  prove,  that  the  defendant,  not- 
withstanding his  acquittal,  was  in  fact  guilty."  The  word  acquittal  is  how- 
ever, appropriate  to  any  termination  of  the  prosecution  in  favor  of  the  ac- 
cused and  does  not  involve  the  idea  of  a  verdict  of  a  jury  in  his  favor.  In 
Bacon  v.  Towne,  4  Cush.  217  (Mass.  1849).  Shaw,  C.  J.,  says,  p.  241,  that  the 
plaintiff's  actual  guilt  may  be  proved  in  mitigation  of  the  damages  and  that 
the  facts  proving  it,  though  not  shown  to  have  been  known  by  the  defendant 
when  he  instituted  the  prosecution,  are  admissible  on  the  question  of  prob- 
able cause,  since  he  may  have  then  known  them,  though  now  unable  to  prove 
that  he  did,  and  see  Jervis,  C.  J.,  and  Pollock,  C,  B.,  in  Heslop  v.  Chapman, 
23  L.  J.  Q.  B.  49  (1853),  p.  52. 

Contra:  Williams  v.  Banks,  1  F.  &  F.  557  (1859).  and  see  Clerk  and 
Lindsell  on  Torts,  6th  ed.,  710. 

^Accord:  McClenny  v.  Inverarity,  80  Kans.  569  (1909),  "the  warrant"  says 
Benson,  J.,  "was  used  to  extort  money  and  not  to  bring  the  alleged  offender 


SCOTT    v.    STANSFIELD.  IO37 

On  the  other  hand,  legal  process,  civil  or  criminal,  may  be  ma- 
liciously used  so  as  to  give  rise  to  a  cause  of  action  where  no  object 
is  contemplated  to  be  gained  by  it  other  than  its  proper  effect  and 
execution.  As  every  man  has  a  legal  power  to  prosecute  his  claims 
in  a  court  of  law  and  justice,  no  matter  by  what  motives  of  malice 
he  may  be  actuated  in  doing  so,  it  is  necessary  in  this  class  to  aver 
and  prove  that  he  has  acted  not  only  maliciously,  but  without  rea- 
sonable or  probable  cause.  It  is  clearly  settled  also,  that  the  pro- 
-ceHding~must  be  determined  finally  before  any  action  lies  for  the 
injuryj^because,  as  it  is  said  in  Arundell  v.  Tregono,  Yelv.  117,  the 
pTamtiff  will  clear  himself  too  soon,  viz.,  before  the  fact  tried, 
which  will  be  inconvenient ;  besides,  the  two  determinations  might 
be  contrary  and  inconsistent. 


CHAPTER  III. 

Defamation  Excused  by  the  Necessity  of  Preserving  the  Right  to 

Speak  Freely  When  Such  Freedom  is  to  the  Public  Interest 

or  Necessary  for  Protection  of  the  Speaker  or  Others. 


SECTION  1. 
'Absolute  Privilege"— "Defeasible  Immunity." 


(a)   Immunity  of  judges,  witnesses,  counsel  and  parties  to 

actions. 


SCOTT  V.  STANSFIELD. 

Court  of  Exchequer,  1868.    L.  R.  3  Exch.  220. 

The  declaration  set  forth  that  the  plaintiff  carried  on  the  busi- 
ness of  an  accountant  and  scrivener  and  that  the  defendant  had 
spoken  of  him  in  relation  to  his  business  as  such  the  following 
words,  "You  are  a  harpey  preying  on  the  vitals  of  the  poor." 

before  the  magistrate,  to  break  the  law  not  to  enforce  it";  White  v.  Apslcy 
Rubber  Co.,  181  Mass.  339  (1902).  194  Mass.  97  (1907),  criminal  law  "in- 
voked not  for  the  purpose  of  vindicating  justice  but  to  get  rid  of  a  trouble- 
some tenant";  Wood  v.  Graves,  144  Mass.  365  (1887),  defendant  procured  an 
indictment  against  the  plaintiff  and  caused  his  arrest  and  detention  thereon 
until  he  had  settled  a  debt;  in  Prough  v.  Entrxken,  11  Pa.  81  (1849),  it  is 
held,  that  where  criminal  process  is  used  to  collect  even  a  just  debt,  as  may 
beinferred  from  the  fact  that  the  creditor  drops  the  prosecution  after  it  is 
paid,  "the  onus  of  proving  probable  cause"  is  thrown  on  him  if  an  action  of 
malicious  prosecution  is  brought  against  him,  Macdonald  v.  Schroeder 
214  Pa.  St.  411  (1906). 

In  Rossiter  v.  Minnesota  Bradner-Srnith  Paper  Co.,  37  Minn.  296  (1887), 


1038  SCOTT   V.    STAXSFIELD. 

Plea  that  the  defendant  was  a  judge  of  a  court  of  record,  the 
County  Court  of  Yorkshire,  and  spoke  the  words  complained  of 
while  hearing  and  trying  a  cause  within  his  jurisdiction,  in  which 
the  new  plaintiff  was  defendant. 

Replication :  That  the  said  words  so  spoken  and  published  by 
the  defendant  as  aforesaid,  were  spoken  falsely  and  maliciously, 
and  without  any  reasonable,  probable  or  justifiable  cause,  and  with- 
out any  foundation  whatever,  and  not  bona  fide  in  discharge  of  his 
duty  as  judge  as  aforesaid,  and  were  wholly  uncalled  for,  immate- 
rial, irrelevant,  and  impertinent,  in  reference  to,  or  in  respect  of,  the 
matters  before  him,  and  were  wdiolly  unwarranted  on  the  said  occa- 
sion, of  all  which  premises  the  defendant  had  notice  before  and  at 
the  time  of  the  committing  of  the  said  grievance,  and  then  well 
knew. 

Demurrer  and  joinder.^ 

Kelly,  C.  B.    I  am  of  opinion  that  our  judgment  must  be  for 
the  defendant.    The  question  raised  upon  this  record  is  whether  an 
,  action  is  maintainable  against  the  judge  of  a  county  court,  w^hich  is 
\a  court  of  record,  for  words  spoken  by  him  in  his  judicial  character 
^^    and  in  the  exercise  of  his   functions  as  judge  in  the  court  over 
\^  4^    which  he  presides,  where  such  words  would  as  against  an  ordinary 
>^  individual  constitute  a   cause  of   action,   and   where   they   are   al- 
leged to  have  been  spoken  maliciously  and  without  probable  cause, 
land  to  have  been  irrelevant  to  the  matter  before  him.    The  question 
arises  perhaps,  for  the  first  time  with  reference  to  a  county  court 
judge,  but  a  series  of  decisions  uniformly  to  the  same  effect,  extend- 
ing from  the  time  of  Lord  Coke  to  the  present  time,  establish  the 
.  ^general  proposition  that  no  action  will  lie  against  a  judge  for  any 
acts  done  or  words  spoken  in  his  judicial  capacity  in  a  court  of  jus- 
"TTce.    This  doctrine  has  been  applied  not  only  to  the  superior  courts, 
^irt  to  the  court  of  a  coroner  and  to  a  court  martial,  which  is  not  a 
court  of  record.    It  is  essential  in  all  courts  that  the  judges  who  are 
appointed  to  administer  the  law  should  be  permitted  to  administer 
it  under  the  protection  of  the  law  independently  and  freely,  without 


the  seizure  under  process  of  goods,  by  statute  exempt  therefrom,  is  held  a 
malicious  abuse  of  process,  compare  Friel  v.  Plumer,  69  X.  H.  498  (1898), 
where  it  is  said  to  be  "a  trespass,  for  which  the  legal  process  affords  no  jus- 
tification." The  boundary  between  the  malicious  use  and  the  abuse  of  legal 
process  is  by  no  means  sharply  defined,  and  while  "abuse  implies  irregular 
and  improper  use,  not  merely  regular  and  proper  use",  Jeffery  v.  Rohbins, 
li  111.  App.  353  (1897),  p.  361,  it  is  not  easy  to  distinguish  between  the  two, 
compare  Bonney  v.  King,  103  111.  App.  601  (1902),  201  111.  47  (1903),  with 
Wood  V.  Graves  and  Prongh  v.  Entriken,  supra.  In  Hazard  v.  Harding, 
63  How.  Pr.  326  (N.  Y.  1882),  the  malicious  unwarranted  procuring  of  an- 
cillary process,  such  as  an  attachment  or  arrest  on  a  statutory  capias  in 
debt,  is  treated  as  abuse  of  process;  but  see  Pittsburgh  etc.  R.  Co.  v.  Wake- 
field Hardware  Co.,  138  N.  Car.  174  (1905),  and  Tamblyn  v.  Johnston,  126 
Fed.  267  (1903),  and  cases  cited  therein;  and  see  Malone  v.  Belcher,  103  N. 
E.  637  (Mass.  1914),  where  the  defendant,  who,  for  the  purpose  of  preventing 
the  sale  of  the  plaintiff's  real  estate,  had  levied  an  attachment  thereon  in  a 
suit  to  collect  commissions  alleged  to  be  due,  was  held  guilty  of  malicious 
abuse  of  process. 

^  The  declaration  and  plea  are  abridged. 


DAWKIXS    v.    LORD    ROKEBY.  1039 

favor  and  without  fear.  This  provision  of  the  law  is  not  for  the 
protection  or  benefit  of  a  maHcious  or  corrupt  judge,  but  for  the 
benefit  of  the  pubhc,  whose  interest  it  is  that  the  judges  should  be 
at  liberty  to  exercise  their  functions  with  independence  and  with- 
out fear  of  consequences.  How  could  a  judge  so  exercise  his  office 
if  he  were  in  daily  or  hourly  fear  of  an  action  being  brought  against 
him,  and  of  having  the  question  submitted  to  a  jury  whether  a  mat- 
ter on  which  he  had  commented  judicially  was  or  was  not  relevant 
to  the  case  before  him?  Again,  if  a  question  arose  as  to  the  bona 
fides  of  the  judge  it  would  have,  if  the  analogy  of  similar  cases  is 
to  be  followed,  to  be  submitted  to  the  jury.  Thus  if  we  were  to  hold 
that  an  action  is  maintainable  against  a  judge  for  words  spoken  by 
him  in  his  judicial  capacity,  under  such  circumstances  as  those  ap- 
pearing on  these  pleadings,  we  should  expose  him  to  constant  dan- 
ger of  having  questions  such  as  that  of  good  faith  or  relevancy 
raised  against  him  before  a  jury,  and  of  having  the  mode  in  which 
he  might  administer  justice  in  his  court  submitted  to  their  deter-, 
mination.  It  is  impossible  to  overestimate  the  inconvenience  oil 
such  a  result.  For  these  reasons  I  am  most  strongly  of  opinion  that/ 
no  such  action  as  this  can,  under  any  circumstances,  be  maintain-/ 
able.  / 

Channell,  B.^  I  am  of  the  same  opinion.  If  the  facts  alleged 
by  the  replication  were  true,  no  doubt  there  would  be  misconduct  on 
the  part  of  the  defendant.  It  does  not  follow  from  the  decision 
which  we  now  pronounce,  that  a  county  court  judge  can  so  miscon- 
duct himself  with  impunity.  If  a  county  court  judge  be  guilty  of 
misconduct  in  the  exercise  of  his  office,  the  Lord  Chancellor  may, 
if  he  think  it  expedient,  remove  him  from  such  office,  but  no  action 
will,  in  my  opinion,  lie  against  him  for  anythijig  done  by  him  in  his 
judicial  capacity.  For  the  benefit  of  theNgublJc-^tid  the  due  adminis-j 
tration  of  justice,  the  law  provides  that  adjudge  is  to  be  so  far  free  1 
and  unfettered  in  the  exercise  of  his  office  as_Qot  to  be  liable  to  an 
action  for  what  he  does  in  the  capacity  of  judge/arid  scTplaced  under 
restraint  in  the  discharge  of  his  duty.  .^^ 

Judgment  for  the  defendant. 


DAWKINS  V.  LORD  ROKEBY. 

House  of  Lords,  1875.     L.  R.  7  English  &  Irish  Appeals  744. 

The  Lord  Chief  Baron  (Sir  F.  Kelly),  in  the  name  of  the 
consulted  Judges,  gave  the  following  answer  to  the  question  pro- 
posed : — 

My  Lords,  these  of  Her  Majesty's  Judges  who  have  had  the 
honour  of  attending  your  Lordships  during  the  argument  of  this 
case,  are  unanimously  of  opinion  that  the  question  put  to  them  by 
your  Lordships  must  be  answered  in  the  affirmative. 

A  long  series  of  decisions  has  settled  that  no  action  will  lie 

"The  concurring  opinions  of  Martin  and  Bramwell,  B.,  are  omitted. 


1040  DAWKINS    V.    LORD    ROKEBY. 

against  a  witness  for  what  he  says  or  writes  in  giving  evidence  be- 
fore a  Court  of  Justice.  This  does  not  proceed  on  the  ground  that 
the  occasion  rebuts  the  prima  jade  presumption  that  words  dispar- 
aging to  another  are  mahciously  spoken  or  written.  If  this  were 
all,  evidence  of  express  malice  would  remove  this  ground.  But  the 
principle,  we  apprehend,  is  that  public  policy  requires  that  witnesses 
should  give  their  testimony  free  from  any  fear  of  being  harassed 
by  an  action  on  an  allegation,  whether  true  or  false,  that  they  acted 
from  malice.^  The  authorities,  as  regards  witnesses  in  the  ordinary 
Courts  of  Justice,  are  numerous  and  uniform.  In  the  present  case, 
it  appears  in  the  bill  of  exceptions  that  the  words  and  writing  com- 
plained of  were  published  by  the  defendant,  a  military  man,  bound 
to  appear  and  give  testimony  before  a  Court  of  Inquiry.  All  that 
he  said  and  wrote  had  reference  to  that  inquiry ;  and  we  can  see  no 
reason  why  public  policy  should  not  equally  prevent  an  action  being 
brought  against  such  a  witness  as  against  one  giving  evidence  in  an 
ordinary  Court  of  Justice. 

The  Lord  Chancellor  (Lord  Cairns)  : — 

Now,  my  Lords,  adopting  expressions  of  the  learned  Judges 
with  regards  to  what  I  take  to  be  the  settled  law  as  to  the  protec- 
tion of  witnesses  in  judicial  proceedings,  I  certainly  am  of  opinion 
that  upon  all  principles,  and  certainly  upon  all  considerations  ot 
convenience  and  of  public  policy,  the  same  protection  which  is  ex- 
tended to  a  witness  in  a  judicial  proceeding  who  has  been  examined 
on  oath  ought  to  be  extended,  and  must  be  extended,  to  a  military 
man  who  is  called  before  a  Court  of  Inquiry  of  this  kind  for  the 
purpose  of  testifying  there  upon  a  matter  of  military  discipline  con- 
nected with  the  army.-     It  is  not  denied  that  the  statements  which 

^See  Pigot.  C.  B.,  in  Kennedy  v.  Hilliard,  10  Ir.  C.  L.  Rep.  195  (1876), 
p.  209,  "I  take  it  that  this  is  a  rule  of  law  not  founded  (as  is  the  protection 
in  other  cases  of  privileged  statements)  on  the  absence  of  malice^  in  the 
party  sued,  but  founded  upon  public  policy,  which  requires  a  Judge,  in  deal- 
ing with  a  matter  before  him,  a  party  in  preferring  or  resisting  a  legal  pro- 
ceeding, and  a  witness  in  giving  evidence,  oral  or  written,  in  a  Court  of 
Justice,  shall  do  so  with  his  mind  uninfluenced  by  the  fear  of  an  action  for 
defamation  or  a  prosecution  for  libel.  It  is  of  far  less  importance  that  oc- 
casional mischief  should  be  done  by  slander  under  such  circumstances,  than 
that  the  whole  course  of  Justice  should  be  enfeebled  and  impeded." 

So  in  the  early  case  of  Cutler  v.  Dixon,  4  Coke  14  (1584),  it  was  held 
that  no  action  lay  upon  any  matter  contained  in  pleadings,  affidavits  or  pe- 
titions of  persons  pursuing  the  ordinary  course  of  Justice,  for  otherwise 
"those  who  have  just  cause  of  complaint  would  not  dare  to  complain  for 
fear  of  infinite  vexation. "•'  The  immunity  of  counsel  for  their  statements 
while  pleading  a  client's  cause  is  said  by  Brett,  M.  R.  in  Minister  v.  Lamb, 
L.  R.  11  Q.  B.  Div.  588  (1883),  p.  604,  to  be  necessary  as  otherwise  "he  would 
have  his  mind  so  embarrassed  that  he  could  not  do  the  duty  he  has  to  per- 
form. *  *  *  If  the  rule  were  otherwise  the  most  innocent  of  counsel 
might  be  unrighteously  harassed  with  suits,  and  therefore  it  is  better  to  make 
the  rule  of  law  so  large  that  an  innocent  counsel  shall  never  be  troubled, 
although. by  making  so  large  counsel  are  included  who  have  been  guilty  ot 
malice  and  misconduct." 

-Coffin  V.  Donnelly,  L.  R.  6  Q.  B.  Div.  307  (1881),  witness  before  select 
committees  (of  inquiry)  of  House  of  Commons;  Wright  v.  Lothrop,  pos\ 
Sheppard  v.  Bryant,  191  Mass.  591  (1906),  witnesses  before  legislative  i.h 
vestigating  committees;  but  see  Blakeslee  v.  Carroll,  64  Conn.  223    (189-^), 


DAWKIXS    2'.    LORD    ROKEBY.  IO4I 

he  made,  both  those  which  were  made  viva  voce  and  those  which 
were  made  in  writing,  were  relative  to  that  inquiry. 

Under  those  circumstances,  my  Lords,  I  submit  to  your  Lord- 
ships that  the  conckision  of  the  learned  Judges  is  in  all  respects  one 
which  we  ought  to  adopt,  and  that  your  Lordships  will  hold  that 
statements  made  under  these  particular  circumstances  are  state- 
ments which  cannot  become  the  foundation  of  an  action  at  law.  I 
therefore  move  your  Lordships  that  the  judgment  of  the  Court  of 
Exchequere  Chamber  be  affirmed,  and  this  appeal  dismissed  with 
costs. 

Lord  Penzance  : — 

My  Lords,  I  also  agree  in  the  view  that  has  been  stated,  but  I 
wish  to  say  one  word  on  the  supposed  hardship  of  the  law  which  is 
brought  into  question  by  this  appeal. 

It  is  said  that  a  statement  of  fact  of  a  libellous  nature  which  is 
palpably  untrue — known  to  be  untrue  by  him  who  made  it,  and  dic- 
tated by  malice — ought  to  be  the  subject  of  a  civil  remedy,  though 
made  in  the  course  of  a  purely  military  inquiry.  This  mode  of 
stating  the  question  assumes  the  untruth  and  assumes  the  malice. 
If  by  any  process  of  demonstration,  free  from  the  defects  of  human 
judgment,  the  untruth  and  malice  could  be  set  above  and  beyond  all 
question  or  doubt,  there  might  be  ground  for  contending  that  the 
law  of  the  land  should  give  damages  to  the  injured  man. 

But  this  is  not  the  state  of  things  under  which  this  question  of 
law  has  to  be  determined.  Whether  the  statements  were,  in  fact, 
untrue,  and  whether  they  were  dictated  by  malice,  are,  and  always 
will  be,  open  questions,  upon  which  opinions  may  differ,  and  which 
can  only  be  resolved  by  the  exercise  of  human  judgment.  And  the 
real  question  is,  whether  it  is  proper  on  grounds  of  public  policy  to 
remit  such  questions  to  the  judgment  of  a  jury.  The  reasons  against 
doing  so  are  simple  and  obvious.  A  witness  may  be  utterly  free 
from  malice,  and  may  yet  in  the  eyes  of  a  jury  be  open  to  that  im- 


holding  the  proceedings  of  an  investigating  committee  of  the  whole  of  a  board 
of  aldermen  not  to  be  judicial  or  quasi-judicial  and  the  privilege  of  a  wit- 
ness before  them  to  be  conditional  only.  An  administrative  council,  to  whom 
had  been  transferred  part  of  the  administrative  functions  previously  exer- 
cised by  the  courts,  does  not  in  the  exercise  of  such  function  act  as  a  ju- 
dicial tribunal,  Royal  Aquarium  Society  v.  Parkinson,  L.  R.  1892  1  Q. 
B.  431. 

There  are  many  dicta  to  the  effect  that  the  immunity  only  attaches  to 
proceedings  in  a  court  having  jurisdiction,  Buckley  V.  Wood,  4  Coke  14a 
(1590).  Hoar  v.  Wood,  3  Mete.  193  (Mass.  1841),  Johnson  v.  Brown,  U  W. 
Va.  71  (1878),  p.  133,  pleadings  of  parties  to  the  proceedings  and  cases 
cited  9  Col.  L.  R.  602,  n.  4;  Contra,  Lake  v.  King,  1  Mod.  58  (1670)  ;  Gw-in::e 
v.  Poole,  2  Lutw.  1560  (1692);  Runge  v.  Franklin,  72  Tex.  585  (1889), 
In  Bower  on  "Actionable  Defamation",  p.  371,  the  law  of  England  is  said  to 
be  that  "it  is  different  if  the  proceeding,  so  far  as  the  party  defaming  has 
any  reason  to  know,  is  lawful  and  conducted  with  annarent  regularity" ;  see 
also,  McCabe  v.  Joynt,  1901  2  Jr.  R.  115.  In  Perkins  \\  Mitchell,  31  Barb. 
461  (N.  Y.  1860),  a  distinction  is  made  between  a  witness,  subpoenaed  to 
testify  or  required  to  make  an  affidavit,  who  is  not  required  to  know  if  the 
court  has  jurisdiction,  and  one,  who  voluntarily  appears  in  a  form  of  proceed- 
ing not  known  to  the  common  law,  who  must  see  that  jurisdiction  is  acquired 
before  he  can  claim  immunity. 


I042  SEAMAN    V.    XETHERCLIFT. 

putation;  or,  again,  the  witness  may  be  cleared  by  the  jury  of  the 
imputation,  and  may  yet  have  to  encounter  the  expenses  and  dis- 
tress of  a  harassing  Htigation.  With  such  possibihties  hanging  over 
his  head,  a  witness  cannot  be  expected  to  speak  with  that  free  and 
open  mind  which  the  administration  of  justice  demands. 

These  considerations  have  long  since  led  to  the  legal  doctrine 
that  a  witness  in  the  Courts  of  Law  is  free  from  any  action ;  and  I 
fail  to  perceive  any  reason  why  the  same  considerations  should  not 
be  applied  to  an  inquiry  such  as  the  present,  and  with,  the  same  re- 
sult. 


SEAMAN  V.  XETHERCLIFT. 
In  the  Court  of  Appeal,  1876.    L.  R.  2  C.  P.  Div.  53. 

Appeal  from  the  decision  of  the  Common  Pleas  Division,  order- 
ing judgment  to  be  entered  for  the  defendant,  i  C.  P.  D.  540. 

Claim :  that  defendant  said  of  a  will,  to  the  signature  of  which 
the  plaintiff  w^as  a  witness,  'T  believe  the  signature  of  the  will  to  be 
a  rank  forgery,  and  I  shall  believe  so  till  the  day  of  my  death," 
meaning  that  the  plaintiff  had  been  guilty  of  forging  the  signature 
of  the  testator,  or  of  aiding  and  abetting  in  the  forgery. 

Defence:  that  defendant  spoke  the  words  in  the  course  of  giv- 
ing his  evidence  as  a  witness  on  a  charge  of  forgery  before  a  magis- 
trate. 

Reply:  that  the  words  were  not  bona  fide  spoken  by  defendant 
as  a  witness,  or  in  answer  to  any  question  put  to  him  as  a  witness, 
and  he  was  a  mere  volunteer  in  speaking  them  for  his  own  purposes 
otherwise  than  as  a  witness  and  maliciously  and  out  of  the  course  of 
his  examination. 

CocKBURN,  C.  J.  The  case  is,  to  my  mind,  so  abundantly  clear, 
and  I  believe  to  the  minds  of  my  learned  Brothers,  that  I  think  we 
ought  not  to  hesitate  to  at  once  pronounce  our  decision. 

At  the  trial  before  Lord  Coleridge  it  appeared  that  in  the  Pro- 
bate suit  of  Davies  v.  May  the  defendant  had  been  examined,  as  an 
adept,  to  express  his  opinion  as  to  the  genuineness  of  a  signature  to 
a  will,  and  he  gave  it  as  his  opinion  that  the  signature  w^as  a  forgery. 
The  president  of  the  Court,  in  addressing  the  jury,  made  some  very 
strong  observations  on  the  rashness  of  the  defendant  in  expressing 
so  confident  an  opinion  in  the  face  of  the  direct  evidence.  Soon 
afterwards,  on  a  prosecution  for  forgery  before  the  magistrate,  the 
defendant  was  called  as  an  adept  by  the  person  charged,  when  he 
expressed  an  opinion  favourable  to  the  genuineness  of  the  docu- 
ment. He  was  then  asked  by  the  counsel  for  the  prosecution 
whether  he  had  been  a  witness  in  the  suit  of  Davies  v.  May.  He 
answered  "Yes."  And  he  was  then  asked,  "Did  you  repeat  a  report 
of  the  observations  wdiich  the  presiding  judge  made  on  your  evi- 
dence?" He  again  said  "Yes."  And  then  the  counsel  stopped.  I 
presume  the  circumstances  of  the  trial  were  well  known,  and  the 
counsel  thought  he  had  done  enough.    The  defendant,  the  witness. 


SEAM  AX    V.    XETHERCLIFT.  IO43 

expressed  a  desire  to  make  a  statement.  The  magistrate  told  him 
he  could  not  hear  it.  Nevertheless  the  defendant  persisted  and 
made  the  statement,  the  subject-matter  of  this  action  of  slander. 

On  the  proof  of  these  facts  Lord  Coleridge  reserved  leave  to 
the  defendant  to  move  to  enter  judgment,  if  the  Court  should  be 
of  opinion  that  there  was  no  evidence  on  behalf  of  the  plaintiff  which 
ought  to  be  left  to  the  jury.  It  occurred  to  him,  however,  that  it 
would  be  as  well  to  take  the  opinion  of  the  jury,  and  they  found 
that  the  replication  was  true,  viz.  that  the  words  were  spoken  not  as 
a  witness  in  the  course  of  the  inquiry,  but  maliciously  for  his  own 
purpose,  that  is,  with  intent  to  injure  the  plaintiff.  Upon  these  find- 
ings judgment  was  entered  for  the  plaintiff,  leave  being  again  re- 
served to  enter  judgment  for  the  defendant,  and  the  Court  of  Com- 
mon Pleas  gave  judgment  for  the  defendant. 

Now,  if  the  findings  of  the  jury  have  been  founded  upon  evi- 
dence upon  which  they  could  have  been  supported,  I  might  have 
had  some  hesitation  about  the  decision.  But  they  were  not;  and 
we  are  asked  to  come  to  a  conclusion  contrary  to  what  has  been 
established  law  for  nearly  three  centuries. 

If  there  is  anything  as  to  which  the  authority  is  overwhelming 
it  is  that  a  witness  is  privileged  to  the  extent  of  what  he  says  in 
course  of  his  examination.  Neither  is  that  privilege  affected  by  the 
relevancy  or  irrelevancy  of  what  he  says ;  for  then  he  would  be 
obliged  to  judge  of  what  is  relevant  or  irrelevant,  and  the  questions 
might  be,  and  are,  constantly  asked  which  are  not  strictly  relevant 
to  the  issue.^  But  that,  beyond  all  question,  this  unqualified  privi- 
lege extends  to  a  witness  is  established  by  a  long  series  of  cases,  the 
last  of  which  is  Dazvkins  v.  Lord  Rokehy,  Law  Rep.  7  H.  L.  744, 
after  which  to  contend  to  the  contrary  is  hopeless.     It  was  there 


^The  tendency  of  British  decision  is  to  hold  that  the  immunity  does  not 
depend  on  the  relevancy  of  the  statements  made  in  answer  to  question  or  vol- 
unteered by  a  witness  while  testifying,  Munster  v.  Lamb,  L.  R.  11  Q.  B.  Div. 
588  (1883),  semble,  p.  601;  Kennedy  v.  Hilliard,  10  Ir.  C.  L.  Rep.  195  (1859), 
sernble,  p.  211,  or  made  orally  or  in  pleadings,  affidavits  or  petitions  by  par- 
ties to  litigation,  Kennedy  v.  Hilliard,  10  Ir.  C.  L.  Rep.  195  (1859)  ;  Hodson 
V.  Pace,  L.  R.  1899,  1  Q.  B.  455 ;  or  by  counsel  in  the  trial  of  his  client's  cause, 
Munster  v.  Lamb,  L.  R.  11  Q.  B.  Div.  588  (1883J).  Some  of  the  earlier  cases 
seem  to  give  protection  to  a  witness  only  if  he  testified  on  the  matter  or 
point  in  issue,  so  that  if  his  testimony  is  false,  he  was  guilty  of  perjury 
under  the  statute  5  Eliz.  c.  9  §  6,  Eyres  v.  Sedgewicke,  Palm.  142  (1620),  Cro. 
Jac.  601,  or  to  counsel  only  if  he  "give  in  evidence"  anything  not  material 
to  the  issue,  since  "he  is  to  discern  at  his  peril  what  to  deliver"  and  is  under 
no  duty  to  his  client  to  deliver  "matter  not  pertinent  to  the  issue  or  the  mat- 
ter in  question." 

The  following  American  cases  adopt  or  contain  dicta  approving  the  doc- 
trine of  the  later  English  cases,  Hunckcl  v.  Voneiff,  69  IMd.  179  (1888),  wit- 
ness, (as  to  the  immunity  extended  in  that  state  to  pleadings  and  counsel, 
see  Note  4  to  Wright  v.  Lothrop,  post;)  Sebree  v.  Thompson,  126  Ky.  223 
(1907),  semble;  Chambliss  v.  Blau,  127  Ala.  86  (1899),  semble;  Terry  v. 
Fellows,  21  La.  Ann.  375  (1869),  semble,  also  witnesses;  Runge  v.  Franklin, 
72  Tex.  585  (1889),  pleadings  of  party. 

The  immunity  is  not  confined  to  statements  defamatory  of  parties  to 
the  litigation.  Henderson  v.  Broomhead,  4  H.  &  N.  569  (1859),  Crockett  v. 
McLemhan,  109  Tenn.  517  (1902)  ;  Cooley  v.  Galyon,  109  Tenn.  1  (1909). 


1044  SEAMAN    7'.    XETIIERCLIFT. 

^expressly  decided  that  the  evidence  of  a  witness  with  reference  to 
the  inquiry  is  privileged,  notwithstanding  it  may  be  mahcious ;  and 
to  ask  "lis  to  decide  to  the  contrary  is  to  ask  what  is  beyond  our 
power.  But  I  agree  that  if  this  case,  beyond  being  spoken  mah- 
ciously,  the  words  had  not  been  spoken  in  the  character  of  a  wit- 
ness or  not  while  he  was  giving  evidence  in  the  case,  the  result  might 
have  been  diflferent.  For  I  am  very  far  from  desiring  to  be  con- 
sidered as  laying  down  as  law  that  what  a  witness  states  altogether 
out  of  the  character  and  sphere  of  a  witness,  or  what  he  may  say 
dehors  the  matter  in  hand,  is  necessarily  protected.  I  quite  agree 
that  what  he  says  before  he  enters  or  after  he  has  left  the  witness- 
box  is  not  privileged,  which  was  the  question  in  the  case  before  Lord 
Ellenborough,  Trotman  v.  Dunn,  4  Camp.  211.^  Or  if  a  man  when 
in  the  witness-box  were  to  take  advantage  of  his  position  to  utter 
something  having  no  reference  to  the  cause  or  matter  of  inquiry  in 
order  to  assail  the  character  of  another,  as  if  he  were  asked :  Were 
3'ou  at  York  on  a  certain  day?  and  he  were  to  answer:  Yes,  and 
A.B.  picked  my  pocket  there ;  it  certainly  might  well  be  said  in  such 
a  case  that  the  statement  was  altogether  dehors  the  character  of 
witness,  and  not  within  the  privilege. 

If,  therefore,  the  findings  of  the  jury,  that  the  defendant  had 
ceased  to  be  a  witness  when  he  spoke  the  words,  were  justified  by 
the  evidence,  I  should  hesitate  before  I  decided  in  his  favour.  But 
I  think  the  defendant  was  entitled  to  judgment  on  the  first  reserva- 
tion. There  was  no  evidence  to  go  to  the  jury  upon  the  plaintiff's 
case.  What  the  defendant  said  w^as  said  in  his  character  of  witness ; 
for  there  can  be  no  doubt  that  the  words  were  spoken  in  conse- 
quence of  the  question  put  to  him  by  counsel  for  the  prosecution, 
the  object  and  effect  of  the  cross-examination  having  been  to  dam- 
age his  credibility  as  a  witness  before  the  magistrate,  and  of  this 
the  witness  was  conscious.  The  counsel,  having  put  the  question, 
stops ;  and  if  there  had  been  counsel  present  for  the  prisoner  who 
had  re-examined  the  witness,  he  would  have  put  the  proper  ques- 
tions to  rehabilitate  him  to  the  degree  of  credit  to  which  he  was  en- 
titled. That  such  questions  would  have  been  relevant  I  cannot  bring 
myself  for  a  moment  to  doubt,  relating  as  they  do  to  the  credibility 
of  the  witness,  w'hich  is  part  of  the  matter  of  which  the  magistrate 
has  to  take  cognizance.  That  being  so,  the  witness  himself,  who  is 
sworn  to  speak  the  whole  truth,  is  properly  entitled,  not  only  with 
a  view  to  his  own  vindication,  but  in  the  interest  of  justice,  to  make 
such  an  observation  in  explanation  of  his  former  answer  as  is  just 
and  fair  under  the  circumstances.  That  is  what  the  defendant  did. 
The  sitting  magistrate  having  allowed  the  disparaging  question  to 


'Accord:  Morgan  v.  Booth,  76  Ky.  480.  A  witness  testifying  before  a 
grand  jury  has  absolute  immunity,  Schidtz  v.  Strauss,  127  Wis.  325  (1906), 
and  statements  made  to  the  district  attorney,  whether  after  a  bill  of  indict- 
ment has  been  preferred,  Schults  v.  Strauss,  127  Wis.  325  (1906),  or  giving 
information  to  enable  him  to  begin  a  prosecution,  Vogcl  v.  Griiac,  110  U.  S. 
311  (1883),  are  absolutely  privileged,  and  so  are  statements  made  to  or  by 
an  attorney  in  the  preparation  of  his  client's  case,  JVatsoti  v.  Jones,  1905  A. 
C.  380;  Youmans  v.  Smith,  153  X.  Y.  214  (1897). 


SEAM  AX    t'.    NETHERCLIFT.  IO45 

be  put  and  answered,  ought  not  to  have  interfered  to  prevent  the 
defendant  from  giving  an  explanation.  I  think  the  statement,  com- 
ing immediately  after  the  damaging  question  had  been  put  to  him, 
must  be  taken  to  be  part  of  his  testimony  touching  the  matter  in 
question,  as  it  afifects  his  credibility  as  a  witness  in  the  matter  as  to 
which  he  was  called.  It  was  given  as  part  of  his  evidence  before 
he  had  become  divested  of  his  character  of  witness;  and  but  for 
the  question  of  the  opposite  counsel  he  never  would  have  made  the 
statement  at  all. 

In  my  opinion,  the  Lord  Chief  Justice  should  have  nonsuited 
the  plaintiff,  which  is  the  conclusion  at  which  the  Court  of  Common 
Pleas  ultimately  arrived ;  for  there  really  was  no  evidence  that  the 
defendant  w^as  speaking  otherwise  than  as  a  witness  and  relevantly 
to  the  matters  in  issue,  because  relevantly  to  his  own  character  and 
credibility  as  a  witness  in  the  matter.  That  being  so,  even  if  express 
malice  could  have  been  properly  inferred  from  the  circumstances, 
the  case  of  Daivkins  v.  Lord  Rokehy,  Law.  Rep.  7  H.  L.  744,  con- 
clusively decides  that  malice  has  ceased  to  be  an  element  in  the  con- 
sideration of  such  cases,  unless  it  can  be  shewn  that  the  statement 
was  made  not  in  the  course  of  giving  evidence,  and  therefore  not  in 
the  character  of  a  witness. 

Bramwell,  J.  A.  I  am  of  the  same  opinion.  The  judgment  of 
the  Common  Pleas  affirmed  two  propositions.  First,  that  what  the 
defendant  said  was  said  as  a  witness,  and  was  relevant  to  the  in- 
quiry before  the  magistrate ;  secondly,  that,  that  being  so,  the  Lord 
Chief  Justice  should  have  stopped  the  trial  of  the  action  by  non- 
suiting the  plaintiff. 

As  to  the  first  proposition,  I  am  by  no  means  sure  that  the  word 
"relevant"  is  the  best  word  that  could  be  used  ;  the  phrases  used  by 
the  Lord  Chief  Baron  and  the  Lord  Chancellor  in  Dazvkins  v.  Lord 
Rokehy,  Law  Rep.  7  H.  L.  at  p.  744,  would  seem  preferable,  "hay- 
ing reference,"  or  "made  with  reference  to  the  inquiry."  _  Now, 
were  the  judges  of  the  Common  Pleas  Division  right  in  holding  that 
this  statement  of  the  defendant  had  reference  to  the  inquiry?  I 
think  that  they  were.  There  can  be  no  doubt  that  the  question  put 
by  the  cross-examining  counsel  ought  not  to  have  been  allowed: 
"Have  you  read  what  Sir  James  Hannen  is  reported  to  have  said 
as  to  your  evidence  in  Davics  v.  May?"  What  Sir  James  Hannen 
had  said  in  a  former  case  was  not  evidence.  It  was,  therefore,  an 
improper  question,  and  the  answer  to  it,  if  untrue,  would  not  have 
subjected  the  witness  to  an  indictment  for  perjury.  But  the  ques- 
tion having  been  put,  and  the  answer  having  been  in  the  afifirmative 
— and  the  question  being,  as  Lord  Coleridge  observed,  "ingeniously 
suggestive,"  viz. :  that  the  way  the  defendant  had  been  dealt  w'ith 
on  the  former  occasion  did  not  redound  to  his  credit  as  a  w'itness — 
the  defendant  insisted  on  making  in  addition  the  statement  com- 
plained of.  He  did  so,  in  my  opinion,  very  foolishly.  It  would  have 
been  better  to  have  been  satisfied  with  retaining  his  owm  opinion 
without  setting  it  up  in  direct  opposition  to  the  positive  testimony 
of  eyewitnesses.     But  he  foolishly,  as  I  think,  and  coarsely  ex- 


1046  WRIGHT   v.    LOTHROP. 

claimed,  "I  believe  the  will  to  be  a  rank  forgery,  and  shall  believe 
so  to  the  day  of  my  death."'  Suppose  after  he  had  said  "yes,"  he 
had  added  in  a  decent  and  becoming  manner,  "and  I  am  sorry  Sir 
James  Hannen  said  what  he  did,  for  I  took  great  pains  to  form  my 
own  opinion,  and  I  shall  always  retain  it,  as  I  still  think  it  right." 
Would  not  that  have  had  reference  to  the  inquiry  before  the  magis- 
trate? And  would  it  not  have  been  reasonable  and  right  that  the 
witness  should  have  added  that  statement  in  justification  of  him- 
self? Surely,  yes.  ^Ir.  Clarke  said  he  was  prepared  to  maintain 
that  as  long  as  a  witness  spoke  as  a  witness  in  the  witness-box,  he 
was  protected,  whether  the  matter  had  reference  to  the  inquiry  or 
not.  I  am  reluctant  to  affirm  so  extreme  a  proposition.  Suppose 
while  the  witness  was  in  the  box,  a  man  were  to  come  in  at  the  door, 
and  the  witness  were  to  exclaim,  "that  man  picked  my  pocket."  I 
can  hardl}'  think  that  would  be  privileged.  I  can  scarcely  think  a 
witness  would  be  protected  for  anything  he  might  say  in  the  witness- 
box,  wantonly  and  without  reference  to  the  inquiry.  I  do  not  say 
he  would  not  be  protected.  It  might  be  held  that  it  was  better  that 
everything  a  witness  said  as  a  witness  should  be  protected,  than 
that  witnesses  should  be  under  the  impression  that  what  they  said 
in  the  witness-box  might  subject  them  to  an  action.  I  should  cer- 
tainly pause  before  I  afiirmed  so  extreme  a  proposition,  but  with- 
out affirming  that,  I  think  the  words  "having  reference  to  the  in- 
quiry" ought  to  have  a  very  wide  and  comprehensive  application, 
and  ought  not  to  be  limited  to  statements  for  which,  if  not  true,  a 
witness  might  be  indicted  for  perjury,  or  the  exclusion  of  which  by 
the  judge  would  give  ground  for  a  new  trial ;  but  ought  to  extend  to 
that  which  a  witness  might  naturally  and  reasonably  say  when  giv- 
ing evidence  with  reference  to  the  inquiry  as  to  which  he  had  been 
called  as  a  witness.  Taking  that  view,  I  think  the  first  proposition 
is  established,  that  the  statement  of  the  defendant  was  made  as 
witness  and  had  reference  to  the  inquiry. 


WRIGHT  V.  LOTHROP. 

Supreme  Judicial  Court  of  Massachusetts,  1889.     149  Mass.  385. 

Field,  J.  It  appeared  that  an  order  had  been  introduced,  at  the 
suggestion  of  Lothrop,  in  the  House  of  Representatives  of  the  Com- 
monwealth, "That  the  Committee  on  Insurance  consider  the  ex- 
pediency of  such  legislation  as  will  make  'tenants  at  will'  liable  for 
damages  from  fire  caused  by  their  carelessness ;"  that  this  order 
had  been  ultimately  referred  to  the  Committee  on  the  Judiciary; 
and  that  after  the  order  was  referred  to  this  committee,  Lothrop 
appeared  before  the  committee  and  called  its  attention  to  the  report 
of  the  case  of  Lothrop  v.  Thayer,  in  138  Mass.  466,  which  had  then 
been  published,  and  was  the  report  of  the  decision  by  this  court  of 
the  action  he  had  brought  against  Thayer  and  AX'right  for  the  burn- 
ing of  his  property.  Lothrop  desired  the  committee  to  report  a  bill 
making  tenants  at  will  liable  for  the  negligent  burning  of  prop- 


WRIGHT    r.    LOTHROP.  104/ 

erty  in  their  possession,  and,  while  advocating  this  before  the  com- 
mittee, he  explained  the  action  which  he  had  brought  and  the  de- 
cision of  the  court,  and  said  to  different  members  of  the  committee 
that  the  tenants,  meaning  the  plaintiffs,  had  wilfully  burned  his 
building,  or  that  he  thought  they  had,  although  he  could  not  prove 
it.  There  is  some  evidence  that  he  said  this  without  having  been 
specifically  asked  a  question  upon  this  subject  by  the  committee,  and 
that  the  committee  room  was  open  to  the  public  at  the  time. 

The  second  of  these  actions  is  an  action  of  tort,  brought  by 
Wright  against  Lothrop,  for  slander,  in  making  the  statement  con- 
cerning the  burning  of  his  property  w^hich  has  been  recited.  The 
answer  sets  up,  among  other  things,  that  the  statement  was  a  priv- 
ileged communication  made  to  a  committee  of  the  Legislature  upon 
a  subject  then  under  consideration  by  the  committee,  and  concern- 
ing which  the  committee  had  a  duty  to  perform,  and  that  the  state- 
ment was  made  without  malice  and  under  the  belief  that  it  was 
true,  and  that  this  was  a  reasonable  belief.  The  privilege  of  a  wit- 
ness appearing  before  a  committee  of  the  Legislature,  in  a  matter 
within  the  jurisdiction  of  the  committee,  is  undoubtedly  the  same 
as  that  of  a  witness  in  proceedings  before  a  court  of  justice.^ 

The  examination  of  witnesses  is  regulated  by  the  tribunal  be- 
fore which  they  testify,  and  if  witnesses  answer  pertinently  ques- 
tions asked  them  by  counsel  which  are  not  excluded  by  the  tribunal, 
or  answer  pertinently  questions  asked  them  by  the  tribunal,  they 
ought  to  be  absolutely  protected.-  It  is  not  the  duty  of  a  witness  to 
decide  for  himself  whether  the  questions  asked  him  under  the  di- 
rection of  the  tribunal  are  relevant."     As  the  witness  is  sworn  to 


^  See  cases  cited  in  note  2  to  Dawkins  v.  Rokeby,  ante,  p.  1040. 

^  Statements  responsive  to  questions  put  bj-  counsel  or  court  are  gen- 
erally held  to  be  absolutely  privileged,  Hendrix  v.  Dauglitry,  3  Ga.  App.  481 
(1908);  Biischbaiim  v.  Heriot,  5  Ga.  App.  521  (1909);  Baldzvin  v.  Hutchin- 
son, 8  Ind.  App.  454  (1893)  ;  Brooks  v.  Briggs,  22  Maine  447  (1851)  ;  Cooley 
V.  Galvon,  109  Tenn.  1  (1902),  with  which  compare  Sliaddcn  v.  McElwell,  86 
Tenn."l46  (1887).  In  Smith  v.  Howard,  28  Iowa  51  (1869),  it  is  said  that  if 
a  witness  "in  answer  to  questions,  put  by  attorneys,  spoke  the  words,  \vith- 
out  malice,  believing  them  to  be  responsive,  he  would  not  be  liable";  see 
Hutchinson  V.  Leims,  75  Ind.  55  (1881)  ;  while  in  Acre  v.  Starkweather^  118 
Mich.  214  (1898),  reasonable  belief  that  they  were  responsive  is  held  to  be 
enough  to  give  immunity.  In  Steinccke  v.  Marx,  10  Mo.  App.  580  (1881), 
the  question  is  said  to  be  "not  as  to  the  pertinency  and  relevancy  of  the 
testimony  but  whether  they  were  spoken  by  the  witness  without  being  stopped 
by  the  court  or  counsel,  and  under  the  supposition  that  they  were  relevant." 
So  where  a  witness  is  asked  to  tell  his  storv  in  his  own  way  it  is  held  in 
Sheppard  v.  Bryant.  191  Mass.  591  (1906),  that  he  has  the  right  to  assume 
that  the  court  will  stop  him  if  he  states  anything  not  desired  by  it  and  that 
anything  said  before  such  interruption  is  responsive  to  the  original  question. 

^  Compare  Cockburn,  C.  J.,  in  Seaman  v.  Netherclift,  L.  R.  2  C.  P.  Div. 
53  (1876),  p.  56. 

Accord:  Moore  v.  Manufacturers'  Nat.  Bank,  123  N.  Y.  420  (1890),  p. 
426,  scmble.  Bond,  J.,  in  Lamberson  v.  Long,  66  jMo.  App.  253  (1906),  and 
Crecelius  v.  Bierman,  59  Mo.  App.  513  (1894);  Buschbaiim  v.  Heriot,  5  Ga. 
App.  521  (1909),  witness  held  not  to  be  protected  if  he  volunteer  false  testi- 
mony, "the  immateriality  of  which  is  apparent  to  any  ordinary  mind."  In 
other  cases  it  is  said  that  it  is  enough  if  he  in  good  faith  believes  his  state- 
ments to  be  material,  White  v.  Carroll,  42  N.  Y.  161  (1870)  ;  Marsh  v.  Elliott, 


1048  WRIGHT    Z'.    LOTIIROP. 

tell  the  whole  truth  relating  to  the  matter  concerning  which  his  tes- 
timony is  taken,  he  ought  also  to  be  absolutely  protected  in  testify- 
ing to  any  matter  which  is  relevant  to  the  inquiry,  or  which  he  rea- 
sonably believes  to  be  relevant  to  it.  pjut  a  witness  ought  not  to  be 
permitted  with  impunity  to  volunteer  defamatory  statements  which 
are  irrelevant  to  the  matter  of  inquiry,  and  which  he  does  not  believe 
to  be  relevant.  This  statement  of  the  law,  we  think,  is  supported  by 
the  decisions  in  this  Commonwealth.  The  English  decisions,  per- 
haps, go  somewdiat  further  than  this  in  favor  of  a  witness ;  cer- 
tainly they  apply  the  rule  liberally  for  his  protection.  Marsh  v. 
Ellszvorth,  50  N.  Y.  309. 

If,  then,  the  statement  of  Lothrop  to  the  committee  be  regarded 
as  the  pertinent  answer  of  a  witness  to  questions  put  to  him  by  mem- 
bers of  the  committee,  the  action  cannot  be  maintained.  Lothrop 
may  have  been  treated  as  a  witness  by  the  committee,  although  he 
was  not  sworn. ^ 


50  N.  Y.  309  (1872),  p.  313;  Shadden  v.  McEIwee,  86  Tenn.  146  (1887).  See 
also,  Hastings  V.  Liisk,  22  Wend.  410  (X.  Y.  1839).  p.  421,  discussing  the  im- 
munit}-  of  counsel  or  a  party  conducting  the  litigation  himself.  In  Cooper 
V.  Phipps,  24  Ore.  357  (1893),  it  is  said  that  some  cases  hold  that  the  wit- 
ness is  not  protected  if  it  is  proved  that  he  abused  his  privilege  by  false 
statements  which  he  knew  to  be  impertinent  and  immaterial.  See  also,  Liles 
V.  Caster,  42  Ohio  St.  631  (1885),  which  seems  to  leave  open  the  question 
whether  the  witnesses  privilege  is  absolute  or  conditional,  McDavitt  v.  Boycr, 
169  111.  475  (1897)  ;  McNabb  v.  Neal,  88  111.  App.  571  (1900). 

*A  similar  relevancy  is  required  of  statements  in  pleadings  or  affidavits 
or  made  by  counsel  in  the  conduct  of  his  client's  cause.  Johnson  v.  Brown, 
13  W.  Va.  71  (1878),  Kemper  v.  Fort,  219  Pa.  85  (1907),  Garr  v.  Selden, 
4  N.  Y.  91  (1850),  Jones  v.  Brozvnice.  161  Mo.  258  (1901),  Crockett  v.  Mc- 
Lanahan,  109  Tenn.  517  (1902),  pleadings  and  affidavits;  Hoar  v.  Wood,  3 
Mete.  193  (Mass.  1841),  McMillan  v.  Birch,  1  Binney  178  (Pa.  1806).  "if," 
said  Tilghman,  C.  J.,  "any  man  should  abuse  the  privilege  and  under  pre- 
tence of  pleading  his  cause,  wander  designedly  from  the  point  in  question 
and  maliciously  heap  slander  on  his  adversary,  I  will  not  say  that  he  is  not 
responsible  in  an  action  at  law;"  Hastings  v.  Lusk,  22  Wend.  410  (N.  Y. 
1839).  And  see  for  full  citation  of  American  decisions  Van  Vechten 
Veeder.  Absolute  Immunity  in  Defamation.  9  Col.  L.  R.  463-600  (1909),  note 
12.  p.  605.  Compare  the  three  Maryland  cases,  decided  in  the  same  term 
dealing  respectively  with  the  immunity  of  witness,  party  making  defamatory 
statements  in  his  pleadings  and  counsel,  Hunckel  v.  Voneiff,  69  Md.  179 
(1888);  Bartlett  v.  Christhilf,  69  Md.  219,  and  Maidsby  v.  Reif snider,  69 
Md.  143. 

The  burden  of  proving  that  the  statement  of  the  witness  is  irrelevant 
rests  on  the  plaintiff,  Emerman  V.  Bruder,  7  Ohio  Dec.  311  (1897)  ;  Bond,  J., 
in  Crcceliiis  v.  Bier  man,  59  Mo.  App.  513  (1894),  and  see  Kennedv  v.  Hilliard, 
10  Ir.  C.  L.  R.  195  (1859),  pp.  210.  226,  Kemper  v.  Fort,  219  Pa.  85  (1907), 
cases  where  the  question  was  the  immunity  of  parties  to  an  action  for  de- 
famatory statements  in  the  pleadings,  holding  that  all  doubt  should  be  re- 
solved in  favor  of  relevancy. 

The  question  of  the  actual  relevancy  of  the  statements  is  for  the  court, 
Johnson  v.  Brown,  13  W.  Va.  71  (1878).  p.  146;  Jones  v.  Brownlee.  161  Mo. 
258  (1901);  Crockett  v.  McLanahan,  109  Tenn.  517  (1902),  while  the  ques- 
tion of  the  witnesses  belief  in  their  relevancy  is.  where  it  is  regarded  as  ma- 
terial, a  question  for  the  jurv.  Marsh  v.  Ellsworth,  50  X.  Y.  309  (1872),  Has- 
tings V.  Lusk,  22  Wend.  410  (X.  Y.  1839). 

In  some  jurisdictions  statements  not  actuallv  relevant,  Kellev  v.  Gt. 
Western  R.  Co.,  145  N.  W.  664  (Wis.  1914),  or  not  responsive  to  questions 
of  counsel  and  clearly  irrelevant  to  any  ordinary  mind,  Bushbaum  v.  Hcriot, 


I 


COFFIN    V.    COFFIN.  IO49 

(b)   Immunity  of  legislators  and  governmental  officers. 


"Freedom  of  speech  and  debate  or  proceedings  in  Parliament 
ought  not  to  be  impeached  or  questioned  in  any  Court  or  place."^ 
— I  IVilliam  and  Mary  Sess.  ii,  c.  2,  §  i. 


COFFIN  V.  COFFIN. 

Supreme  Judicial  Court  of  Massachusetts,  1808.     4  Mass.  1. 

Parsons,  C.  J.  The  plaintiff  has  commenced  an  action  on  the 
case,  demanding  damages  of  the  defendant  for  an  injury  to  his 
character,  committed  by  the  defendant,  in  maliciously  uttering  and 
publishing  defamatory  words,  which  imported  that  the  plaintiff  had 
committed  a  felony  by  robbing  the  Nantucket  Bank. 

To  this  demand  the  defendant  pleaded  not  guilty,  and  also,  by 
leave  of  the  Court,  a  special  plea  in  bar,  justifying  the  speaking  of 
the  words,  because,  he  alleged,  at  the  time  when  they  were  spoken, 
he  and  Benjamin  Russell  were  members  of  the  House  of  Representa- 
tives, then  in  session,  and  that  he  spoke  the  words  to  Russell,  in  de- 
liberation in  the  House,  concerning  the  appointment  of  a  notary  pub- 
lic, and  that  the  words  had  relation  to  the  subject  of  their  delibera- 
tion. 

The  plaintiff*,  in  his  replication,  denies  these  allegations ;  and 
avers  that  the  words  were  spoken  by  the  defendant  of  his  own 
wrong,  and  without  such  cause  as  he  had  alleged,  and  tenders  an 
issue  to  the  country.  The  defendant  does  not  demur  to  the  replica- 
tion, but  joins  the  issue  thus  tendered. 

Both  the  issues  came  on  to  trial,  and  it  appeared  from  the  evi- 
dence, that  when  the  words  were  spoken,  the  defendant  and  Russell 
were  members  of  the  House  of  Representatives,  then  in  session. 
The  occasion,  manner  and  circumstances,  of  speaking  them  are  thus 
related  by  Russell,  the  witness.  He,  having  some  acquaintance 
with  the  plaintiff,  and  thinking  highly  of  his  integrity,  was  applied 
to  by  him  to  move  a  resolution  for  the  appointment  of  an  addi- 


5  Ga.  App.  521  (1909),  while  losing  their  absolute  immunity  are  conditionally 
privileged,  the  witness's  belief  or  lack  of  belief  being  evidence  of  malice, 
compare  Smith  v.  Hozvard,  28  Iowa  51  (1869J,  and  see  the  opinions  of  Rom- 
bauer,  P.  J.,  in  Lamberson  v.  Long  and  Crccelius  v.  Bierman,  59  Mo.  Apn. 
513  (1894). 

^  This  section  of  the  "bill  of  rights"  while  held  to  give  absolute  im- 
munity to  defamatory  statements  about  an  individual  made  in  a  speech  in 
Parliament,  Dillon  v.  Balfour,  20  L.  R.  Ir.  600  (1887),  and  while  said  to  be 
"declaratory,  not  enacting",  Fielding  v.  Thomas,  L.  R.  1896  A.  C.  600,  p. 
612,  was  originally  designed  to  protect  Parliament  and  its  members  from 
coercion  by  the  crown.  For  the  history  cl  the  long  struggle  for  Par- 
liamentary freedom  of  speech,  see  Van  Vechten  Veeder,  Esq.,  Absolute  Im- 
munity in  Defamation,  10  Col.  L.  Rev.  131  (1910),  pp.  131-134.  and  Dillon 
vBalf cur  20  L.  R.  600  (1887).  Similar  provisions  occur  in  the  constitutions 
of  practically  all  countries  which  have  constitutions,  see  10  Col.  L  R.  131   n  1 


1050  COFFIN    Z'.    COFFIN. 

tional  notary  for  Nantucket,  the  town  represented  by  the  defend- 
ant. Russell  made  the  motion,  and  had  leave  to  lay  the  resolution 
on  the  table.  The  defendant,  in  his  place,  inquired  where  Russel' 
had  the  information  of  the  facts  on  which  the  resolution  was  moved. 
The  witness  answered,  from  a  respectable  gentleman  from  Nan- 
tucket. The  resolution  then  passed,  and  the  speaker  took  up  some 
olher  business.  Russell  then  left  his  place,  and  was  standing  in 
the  passage-way,  within  the  room,  conversing  with  several  gentle- 
men. The  defendant,  leaving  his  place,  came  over  to  Russell,  and 
asked  him  who  was  the  respectable  gentleman,  from  whom  he  had 
received  the  information  he  had  communicated  to  the  house.  Rus- 
sell answered  carelessly,  he  was  perhaps  one  of  his  relations,  and 
named  Coffin,  as  most  of  the  Nantucket  people  were  of  that  name. 
The  witness,  then,  perceiving  the  plaintiff  sitting  behind  the  bar, 
pointed  to  him,  and  informed  the  defendant  he  was  the  man.  The 
defendant  looked  towards  him,  and  said,  "What,  that  convict?" 
Russell  surprised  at  the  question,  asked  the  defendant  what  he 
meant ;  he  replied,  "Don't  thee  know  the  business  of  Nantucket 
Bank?"  Witness  said,  "Yes,  but  he  was  honorably  acquitted."  The 
defendant  then  said,  "That  did  not  make  him  less  guilty  thee  knows." 
It  further  appears  that  this  conversation  passed  a  little  before  one 
o'clock,  that  the  election  of  notaries  was  not  then  before  the  house, 
but  was  made  that  afternoon,  or  the  next  day,  and  that  the  plain- 
tiff was  not  a  candidate  for  that  office.  x\nd  there  is  no  evidence 
that  the  resolution  laid  on  the  table  by  Russell,  and  passed,  or  the 
subject-matter  of  it,  was  ever  after  called  up  in  the  house. 

The  defendant  insisted  the  evidence  supported  the  justification 
contained  in  the  bar,  and  that  by  law  the  second  issue  ought  to  be 
found  for  him. 

The  judge  gave  to  the  jury  his  construction  of  the  article,  and 
declared  to  them  his  opinion,  that  the  facts  did  not  in  law  maintain 
the  issue  for  the  defendant;  and  the  jury  found  a  verdict  for  the 
plaintiff. 

The  twenty-first  article  of  the  declaration  of  rights  declares 
that  "The  freedom  of  deliberation,  speech,  and  debate,  in  either 
house  of  the  legislature,  is  so  essential  to  the  rights  of  the  people, 
that  it  cannot  be  the  foundation  of  any  accusation  or  prosecution, 
action  or  complaint,  in  any  other  court  or  place  whatsoever." 

In  considering  this  article,  it  appears  to  me  that  the  privilege 
secured  by  it  is  not  so  much  the  privilege  of  the  house,  as  an  or- 
ganized body,  as  of  each  individual  member  composing  it,  who  is 
entitled  to  this  privilege,  even  against  the  declared  will  of  the  house. 
For  he  does  not  hold  this  privilege  at  the  pleasure  of  the  house, 
but  derives  it  from  the  will  of  the  people,  expressed  in  the  consti- 
tution, which  is  paramount  to  the  will  of  either  or  both  branches  of 
the  legislature. 

These  privileges  are  thus  secured,  not  with  the  intention  of  pro- 
tecting the  members  against  prosecutions  for  their  own  benefit,  but 
to  support  the  rights  of  the  people,  by  enabling  their  representa- 
tives to  execute  the  functions  of  their  office  without  fear  of  prose-? 


COFFIX    V.    COFFIN.  I05I 

cations,  civil  or  criminal.  I  therefore  think  that  the  article  ought 
not  to  be  construed  strictly,  but  liberally,  that  the  full  design  of  it 
may  be  answered.  I  will  not  confine  it  to  delivering  an  opinion, 
uttering  a  speech,  or  haranguing  in  a  debate;  but  will  extend  it  to 
the  giving  of  a  vote,  to  the  making  of  a  written  report,  and  to  every 
other  act  resulting  from  the  nature,  and  in  the  execution,  of  the 
ofifice ;  and  I  would  define  the  article  as  securing  to  every  member 
exemption  from  prosecution,  for  every  thing  said  or  done  by  him, 
as  a  representative,  in  the  exercise  of  the  functions  of  that  office, 
without  inquiring  whether  the  exercise  was  regular  according  to  the 
rules  of  the  house,  or  irregular  and  against  their  rules.  I  do  not 
confine  the  member  to  his  place  in  the  house ;  and  I  am  satisfied  that 
there  are  cases  in  which  he  in  entitled  to  this  privilege,  when  not 
within  the  walls  of  the  representatives'  chamber. 

He  cannot  be  exercising  the  functions  of  his  office  as  member  of 
a  body,  unless  the  body  be  in  existence.  The  house  must  be  in 
session,  to  enable  him  to  claim  this  privilege;  and  it  is  in  session, 
notwithstanding  the  occasional  adjournments,  for  short  intervals, 
for  the  convenience  of  its  members.  If  a  member,  therefore,  be 
out  of  the  chamber,  sitting  in  committee,  executing  the  commission 
of  the  house,  it  appears  to  me  that  such  member  is  within  the  reason 
of  the  article,  and  ought  to  be  considered  within  the  privilege.  The 
body  of  which  he  is  a  member,  is  in  session,  and  he,  as  a  member  of 
that  body,  is  in  fact  discharging  the  duties  of  his  office.  He  ought, 
therefore,  to  be  protected  from  the  civil  or  criminal  prosecutions  for 
every  thing  said  or  done  by  him  in  the  exercise  of  his  functions,  as 
a  representative,  in  committee,  either  in  debating,  in  assenting  to, 
or  in  draughting  a  report.  Neither  can  I  deny  the  member  his 
privilege,  when  executing  the  duties  of  his  office,  in  a  convention  of 
both  houses,  although  the  convention  should  be  holden  in  the  sen- 
ate chamber. 

To  this  construction  of  the  article  it  is  objected,  that  a  private 
citizen  may  have  his  character  basely  defamed,  without  any  pe- 
cuniary recompense  or  satisfaction.  The  truth  of  the  objection  is 
admitted.  But  he  may  have  other  compensation  awarded  to  him  by 
the  house,  who  have  power,  as  a  necessary  incident,  to  demand  of 
any  of  its  members  a  retraction,  or  apology,  of  or  for  any  thing 
he  has  said,  while  discharging  the  duties  of  his  office,  either  in  the 
house,  in  committee,  or  in  a  convention  of  the  two  houses,  on  pain 
of  expulsion.  But  if  it  allowed  that  the  remedy  is  inadequate,  then 
a  private  benefit  must  submit  to  the  public  good.  The  injury  to 
the  reputation  of  a  private  citizen  is  of  less  importance  to  the  com- 
monwealth, than  the  free  and  unreserved  exercise  of  the  duties  of 
a  representative,   unawed  by   the   fear  of   legal   prosecutions. 

If  this  very  liberal  construction  of  the  twenty-first  article  be 
just;  if  it  be  warranted  by  its  language;  if  it  be  consonant  to  its 
manifest  intent  and  design, — the  question  before  the  court  lies  in  a 
narrow  compass. 

Was  Coffin,  the  defendant,  in  speaking  the  defamatory  woras, 
executing  the  duties  of  his  office?     Or,  in  other  language,  was  he 


1052  COFFIX    v.    COFFIN. 

acting  as  a  representative?  If  he  was,  he  is  entitled  to  the  privilege 
he  claims ;  if  he  was  not,  but  was  acting  as  a  private  citizen,  as  a 
private  citizen  he  must  answer. 

Upon  information  given  by  the  plaintiff  to  Russell,  a  member, 
he  had  moved  a  resolution  providing  for  the  choice  of  another  no- 
tary for  Nantucket ;  and  on  Russell's  stating  that  his  information 
was  from  a  respectable  person  from  that  place,  the  resolution  had 
passed ;  the  house  had  proceeded  to  other  business ;  and  the  sub- 
ject-matter of  the  resolution,  or  of  the  information,  was  not  in 
fact  before  the  house,  although  it  is  certain  that  any  member  might 
have  moved  to  rescind  the  resolution.  Russell,  his  iDrother  member, 
was  in  the  passage-way,  conversing  with  several  gentlemen :  the  de- 
fendant came  to  him,  and  inquired  the  name  of  Russell's  informant, 
who,  he  had  declared,  was  a  respectable  gentleman  from  Nantucket. 
Was  this  inquiry,  thus  made,  the  act  of  a  representative,  dis- 
charging his  duty,  or  of  a  private  citizen,  to  gratify  his  curiosity? 
It  was  the  former,  says  the  defendant's  coimsel.  Whether  it  was 
or  not,  certainly  it  was  innocent.  But  to  pursue  the  evidence ;  the 
defendant  was  answered ;  whatever  was  his  motive,  he  had  received 
the  information.  If,  upon  it,  he  intended  again  to  call  up  the 
resolution,  he  might  have  done  it.  But  no  motion  for  that  pur- 
pose was  ever  made.  He  then  utters  to  Russell  the  de- 
famatory words.  What  part  of  his  legislative  duty  was  he  now 
performing?  It  is  said  that  he  might  apprehend  that  the  plaintiff 
was  a  candidate  for  the  office  of  notary,  and  that  his  motive  might 
be  to  dissuade  Rilssell  from  giving  his  vote.  But  there  is  no  evi- 
dence that  the  defendant  supposed  the  plaintiff  to  be  a  candidate, 
and  it  is  in  evidence  that  the  plaintiff  was  not  a  candidate.  It  is 
also  apparent  that  the  defendant  believed  that  Russell  was  not  ig- 
norant of  the  indictment  against  the  plaintiff,  and  of  his  acquittal. 
I  cannot,  therefore,  assign  to  the  defendant  any  other  motive  for 
his  indiscreet  language,  but  to  correct  Russell  for  giving  to  the 
plaintiff  the  appellation  of  a  respectable  gentleman,  and  to  justify 
the  correction  by  asserting  that  an  honorable  acquittal,  by  the  ver- 
dict of  a  jury,  is  not  evidence  of  innocence.  It  is  not,  therefore, 
possible  for  me  to  presume  tnat  the  defendant,  in  using  thus  pub- 
licly the  defamatory  words,  even  contemplated  that  he  was  in  the 
discharge  of  any  official  duty.  This  inquiry  by  the  defendant,  and 
his  replies,  might  have  been  made,  for  all  the  purposes  intended  by 
him,  in  State  Street,  or  in  any  other  place,  as  well  as  the  repre- 
sentatives' chamber ;  and  it  is  not  easy  for  me  to  conceive  that  any 
language  or  conduct  of  a  representative  must  be  considered  as  offi- 
cial, merely  because  he  chooses  the  representatives'  chamber  for 
the  scene. 

But  in  actions  for  defamatory  words  against  a  member,  he 
may,  in  cases  to  which  his  privilege  does  not  extend,  defend  himself 
like  any  other  citizen,  by  proving  that  the  words  were  spoken  for  a 
justifiable  purpose,  not  maliciously,  nor  with  a  design  to  defame  the 
character  of  any  man.  And  this  defence  will  avail  every  man 
charged  with  slander,  although  it  may  be  that  the  words  uttered  ::re 


CHATTERTON    V.    SECRETARY    OF    STATE.  IO53 

not  true.  I  do  not,  therefore,  consider  any  citizen,  who  is  a  repre- 
sentative, answerable  in  a  prosecution  for  defamation,  where  the 
words  charged  were  uttered  in  the  execution  of  his  official  duty, 
ahhough  they  were  spoken  maHciously ;  or  where  they  were  not 
uttered  in  the  execution  of  his  official  duty,  if  they  were  not  spoken 
maliciously,  with  an  intent  to  defame  the  character  of  any  person. 
And  I  do  not  consider  a  representative  holden  to  answer  for  de- 
famatory words,  spoken  maliciously,  and  not  in  discharging  the  func- 
tions of  his  office.  But  to  consider  every  malicious  slander,  uttered 
by  a  citizen,  who  is  a  representative,  as  within  his  privilege,  because 
it  was  uttered  in  the  walls  of  the  representatives'  chamber  to  an- 
other member,  but  not  uttered  in  executing  his  official  duty,  would 
be  to  extend  the  privilege  farther  than  was  intended  by  the  peo- 
ple, or  than  is  consistent  with  sound  policy,  and  would  render  the 
representatives'  chamber  a  sanctuary  for  calumny — an  efifect  w'hich 
never  has  been,  and,  I  confidently  trust,  never  will  be,  endured  by 
any  House  of  Representatives  of   Massachusetts. 

I  am  convinced,  after  much  consideration,  that  the  facts  pre- 
sented by  the  case  do  not  entitle  the  defendant  to  the  privilege 
which  he  claims ;  and  that,  for  this  cause,  the  verdict  ought  not  to 
be  set  aside. 

Under  this  impression,  to  give  a  different  opinion  would  be  a 
desertion  of  a  solemn  duty,  and  a  gross  prevarication  with  my  own 
conscience. 

In  this  opinion  the  Chief  Justice,  the  other  judges,  viz.,  Sedg- 
wick, Sewall,  Thatcher,  and  Parker,  severally  declare  their  full 
and  entire  concurrence.^ 


CHATTERTON  v.  SECRETARY  OF  STATE  FOR  INDIA  IN 

COUNCIL. 

Court  of  Appeal,  1895.    L.  R.  1895,  2  Q.  B.  189. 

Lord  Esher,  M.  R.  The  plaintiff  in  this  case  has  brought  an 
action  of  libel  against  the  Secretary  of  State  for  India  in  Council. 
It  would  seem  from  the  form  of  the  action  that  it  is  meant  to  be 
brought  against  him  in  his  official  capacity,  treating  him  as  a  cor- 

^  Accord:  Kilhourii  v.  Thompson,  103  U.  S.  168  (1880),  and  this  though 
the  proceedings,  an  investigation  of  the  matter  then  pending  in  the  courts,  was 
beyond  the  powers  of  Congress.  It  is  held  in  Greenwood  v.  Cobbey,  26  Xebr. 
449  (1889),  that  the  privilege  of  members  of  boards  or  bodies  exercising 
local  legislative  functions  and  of  executive  officers  making  official  communi- 
cations to  them  is  conditional  merely,  Weber  v.  Lane,  99  AIo.  App.  69 
(1903),  report  of  a  committee  of  board  of  aldermen  held  privileged  unless 
inspired  by  "actual  malice";  contra,  IVachsmuth  v.  Merchants'  Nat.  Bank, 
96  Mich.  426  (1893),  libellous  resolution  offered  in  a  city  council,  and  Trebil- 
cock  V.  Anderson,  117  Mich.  39  (1898),  libellous  statements  in  a  mayor's 
message  to  a  city  council  explaining  his  veto  of  a  resolution  passed  by  it. 
The  pjivilege  of  citizens  taking  part  in  the  proceedings  of  "town  meetings" 
is  clearly  conditional  and  not  absolute,  Bradley  v.  Heath,  12  Pick  163  (Mass 
1831)  ;  Henry  v.  Moherly,  6  Ind.  App.  490  (1892)  ;  Bradford  v.  Clark  90  Maine 
298  (1897),  In  Burch  v.  Bernard.  107  Minn.  210  (1909),  Callahan  v  Ingram 
122  Mo.  355  (1894),  Mauk  v.  Briuidage,  68  Ohio  St.  89  (1903)    and  McGaw 


I054  CHATTERTON    V.    SECRETARY    OF    STATE. 

poration,  not  agaiiist  him  personally.  But  it  would  have  made  no 
difference  if  it  had  been  brought  against  him  as  an  individual.  The 
substance  of  the  case  is  that  it  is  an  action  brought  against  him  in 
respect  of  a  communication  in  writing  made  by  him  as  Secretary  of 
State,  and,  therefore,  a  high  official  of  the  state,  to  an  Under-Sec- 
retary of  State  in  the  course  of  the  performance  of  his  official  duty. 
The  master,  the  judge  at  chambers,  and  the  Divisional  Court  have 
all  come  to  the  conclusion  that  the  action  is  one  which  cannot  by 
any  possibility  be  maintained ;  that  it  is  not  competent  to  a  civil 
court  to  entertain  a  suit  in  respect  of  the  action  of  an  official  of 
state  in  making  such  a  communication  to  another  official  in  the 
course  of  his  official  duty,  or  to  inquire  whether  or  not  he  acted  ma- 
liciously in  making  it.  I  think  that  conclusion  was  correct.  The 
authorities  which  have  been  cited  to  us  appear  to  shew  that,  as  a 
matter  of  clear  law,  a  judge  at  the  trial  would  be  bound  to  refuse 
to  allow  such  an  inquiry  to  proceed,  whether  any  objection  be 
taken  by  the  parties  concerned  or  not.  It  follows  that  such  an  action 
as  this  cannot  possibly  in  point  of  law  be  maintained ;  and,  that  be- 
ing so,  to  allow  it  to  proceed  would  be  merely  vexatious  and  a  waste 
of  time  and  money.  The  reason  for  the  law  on  this  subject  plainly 
appears  from  what  Lord  Ellenborough  and  many  other  judges  have 
said.  It  is  that  it  would  be  injurious  to  the  public  interest  that  such 
an  inquiry  should  be  allowed,  because  it  would  tend  to  take  from  an 
officer  of  state  his  freedom  of  action  in  a  matter  concerning  the  pub- 
lic weal.  If  an  officer  of  state  were  liable  to  an  action  of  libel  in 
respect  of  such  a  communication  as  this,  actual  malice  could  be 
alleged  to  rebut  a  plea  of  privilege,  and  it  would  be  necessary  that 
he  should  be  called  as  a  witness  to  deny  that  he  acted  maliciously. 
That  he  should  be  placed  in  such  a  position,  and  that  his  conduct 
should  be  so  questioned  before  a  jury,  would  clearly  be  against 
the  public  interest,  and  prejudicial  to  the  independence  necessary 
for  the  performance  of 'his  functions  as  an  official  of  state.  There- 
fore the  law  confers  upon  him  an  absolute  privilege  in  such  a  case. 
For  these  reasons,  I  think  the  order  of  the  Divisional  Court  was 
right,  and  should  be  affirmed.^ 


V.  Hamilton,  184  Pa.  St.  108  (1898),  there  is  no  intimation  as  to  whether  the 
immunity  is  absolute  or  conditional,  it  being  held  that  the  privilege  does  not 
extend  to  statements  not  pertinent  to  matters  under  discussion  nor  to  an 
irrelevant  preamble  to  a  resolution.  In  Burch  v.  Bernard  and  Maiik  v. 
Brundage,  a  disposition  is  shown  to  restrict  the  privilege  within  very  narrow 
bounds. 

^Accord:  Grant  v.  Secretary  of  State  for  India,  L.  R.  2  C.  P.  D.  445 
(1877)  ;  Spalding  v.  Vilas,  161  U.  S.  483  (1896).  In  De  Arnaud  v.  Ai'.isworth. 
24  App.  D.  C.  167  (1904),  the  protection  is  extended  to  a  report  by  the  head 
of  a  bureau  to  the  Secretary  of  War.  The  privilege  of  inferior  officers  or  of 
investigating  committees  is  however  conditional  and  not  absolute,  Ranson  v. 
West,  \2S  Ky.  457  (1907);  Howland  v.  Flood,  160  Mass.  509  (1894);  Barrv 
V.  McCollom,  81  Conn.  293  (1908)  ;  Hcmmens  v.  Nelson,  138  N.  Y.  517  (1893). 
As  to  the  immunity  of  reports  by  military  officers  to  their  superiors  or  to  the 
War  Office  or  Department,  see  Dawkins  v.  Paulct,  L.  R.  5  Q.  B.  94  (1869), 
holding  such  reports  absolutely  privileged,  Maurice  v.  Worden,  54  Md.  233 
(1880),  contra,  and  see  10  Col.  L.  R.  142-144.  Petitions  to  parliament  are  ab- 
solutely privileged,  Lake  v.  King,  1   Saund.  120   (1667);  accord:  Harris  - 


BROW   V.    HATHAWAY.  IO55 

SECTION  2. 
"Qualified  Privilege" — Defeasible  Immunity. 


(a)  Communications   made   for   the   protection   of  the   maker's 
property,  interests,  or  reputation. 


BROW  V.  HATHAWAY. 
Supreme  Judicial  Court  of  Massachusetts,  1866.     13  Allen,  239. 

Wells,  J.  The  defendant's  wife  having  lost  goods  from  her 
store,  and  having  grounds  to  suspect  that  the  plaintiff  had  stolen 
them,  the  defendant  applied  to  the  chief  of  police,  and,  at  his  sug- 
gestion, went  with  a  police  ofificer  to  the  house  where  the  plaintiff 
resided  with  her  mother,  to  make  inquiry  into  the  matter.  No 
search-warrant  was  taken,  but  a  search  was  made  by  permission  of 
the  mother  and  the  plaintiff.    No  stolen  goods  were  found. 

The  words  alleged  as  slanderous  were  spoken  by  the  defendant 
on  that  occasion,  in  reply  to  the  inquiry  of  the  mother  as  to  "what 
they  wanted,"  and  in  explanation  of  their  visit.  They  all  related 
to  the  subject-matter  of  the  supposed  theft,  and  the  grounds  which 
the  defendant  had  to  suspect  the  plaintiff.  This  statement  furnishes 
the  conditions  which  establish  the  legal  position  of  "privilege,"  re- 
butting the  presumption  of  malice  which  the  law  would  otherwise 
imply,  and  making  it  incumbent  upon  the  plaintiff  to  show  malice 
in  fact  in  order  to  recover. 

The  broad  general  principle  is  carefully  stated  in  the  case  of 
Toogood  V.  Spyring,  4  Tyrwh.  582,  which  is  referred  to  in  nearly 


Huntington,  2  Tyler  129  (Vt.  1802)  ;  Rcid  v.  Delorme,  2  Brev.  76  (S.  Car. 
1806),  but  "petitions  to  subordinate  legislative  or  other  official  bodies  or  to 
executive  or  administrative  officers  are  privileged  onlv  if  made  in  good 
faith",  10  Col.  L.  R.  139;  Kent  v.  Bongart::,  15  R.  I.  72  (1885);  Thorn  v. 
Blanchard,  5  Johns.  508  (N.  Y.  1809)  ;  Proctor  v.  Webster,  L.  R.  16  Q.  B. 
Div.  112  (1885)  ;  White  v.  Nicholls,  3  How.  266  (U.  S.  1845)  ;  Woods  v.  Wi- 
man,  122  N.  Y.  445  (1890)  ;  Grav  v.  Pentland,  2  Serg.  &  R.  23  (Pa.  1815)  ; 
Ramsev  v.  Cheek,  109  N.  Car.  278  (1891),  but  see  Larkin  v.  Noonan,  19  Wis. 
82  (1865). 

_  This  has  no  operation  in  English  and  American  law  between  the  sov- 
ereign and  his  subjects,  the  nation  or  state  and  its  citizen.  Since  no  action 
can  be  brought  against  the  sovereign  or  state  without  its  express  consent,  the 
only  protection  that  the  subject  or  citizen  has  against  abuse  of  sovereign 
power  is  suit  against  the  minister  in  the  name  of  the  sovereign  who  gives  or 
the  official  who  executes  commands  in  excess  of  the  constitutional  power  of 
the  sovereign.  See  cases  cited  in  note  1  to  Rush  v.  Buckley,  100  Me.  322. 
Nor  is  the  office  protected  by  a  statutory  power  if  the  statute  be  unconstitu- 
tional, in  fact  one  of  the  more  usual  means  of  testing  the  constitutionality  of 
legislative  enactments  is  by  an  action  brought  against  the  officer  acting  under 
it.  This  subject  like  perhaps  that  dealt  with  in  the  principal  case  is  more 
properly  part  of  administrative  law. 


1056 


LROW 


HATIIAWAV, 


all  the  later  decisions  upon  this  subject,  and  its  doctrines  have  been 
quoted  and  approved  by  this  court  in  Swan  v.  Tappan,  5  Cush.  104, 
and  Gassett  v.  Gilbert,  6  Gray,  94.  A  narrower  statement,  appli- 
cable to  the  facts  of  the  present  case,  is  made  by  Lord  Ellenborough 
in  Delany  v.  Jones,  4  Esp.  191,  namely:  "If  done  bona  fide,  as  with 
a  view  of  investigating  a  fact,  in  which  the  party  making  it  is  inter- 
ested, it  is  not  libellous."  To  the  same  effect  are  Padmore  v.  Laiv- 
rence,  11  Ad.  &  El.  380,  and  Fozvler  v.  Homer,  3  Camp.  294.  In 
Blackham  v.  Piigh,  2  C.  B.  620,  Chief  Justice  Tindal  says :  "A  com- 
munication made  by  a  person  immediately  concerned  in  interest  in 
the  subject-matter  to  which  it  relates,  for  the  purpose  of  protecting 
his  own  interest,  in  the  full  belief  that  the  communication  is  true  and 
without  any  malicious  motive,  is  held  to  be  excused  from  responsi- 
bility in  an  action  for  libel."^ 

The  judge  who  tried  this  cause  instructed  the  jury  that  if  the 


^In  Blackham  v.  Piigh,  2  C.  B.  611  (1846),  the  defendant,  a  creditor 
of  tht  plaintiff,  sent  a  notice  to  the  auctioneer  who  had  sold  the  latter's 
goods  not  to  pay  over  the  proceeds  to  him,  "he  having  committed  an  act 
of  bankruptC3\" 

Accord:  Baker  v.  Carrkk,  L.  R.  1894,  1  Q.  B.  838.  facts  similar  to 
those  in  Blackham  v.  Fiigh.  2  C.  B.  611  (1846);  Campbell  v.  Bostick,  22 
S.  W.  828  (Tex.  Civ.  App.  1893)  ;  Whitely  v.  Adams,  15  C.  B.  (N.  S.)  392 
(1863),  statements  explaining  or  defending  one's  business  conduct;  Boh- 
linger  v.  Germanm  Life  Ins.  Co.,  100  Ark.  477  (1911)  ;  Harrison  v.  Garrett, 
132  N.  Car.  172  (1903)  ;  Nichols  v.  Eaton,  110  Iowa,  509  (1900)  ;  Phillips  v. 
Bradshaw,  167  Ala.  199  (1910),  communications  by  a  principal  to  his  agent 
or  an  owner  to  his  manager  in  regard  to  other  agents,  employes  or  customers ; 
Hebner  v.  Great  Northern  R.  Co..  78  AUnn.  289  (1899)  ;  Tench  v.  Great 
Western  R.  Co.,  33  U.  Can.  Q.  B.  8  (1873),  and  Hunt  v.  Great  Northern  R. 
Co.,  L.  R.  1891,  2  Q.  B.  189,  communication  to  railway  employes  of  the 
reasons  for  dismissing  a  fellow  employe;  Bonrgard  v.  Barthelmes,  24  Ont. 
App.  431  (1897),  statements  by  a  master  to  a  workman  that  the  material 
that  he  was  using  was  the  property  of  a  third  person,  stolen  by  a  fellow 
workman;  Somcrville  v.  Hawkins,  10  C.  B.  583  (1851),  warning  given  to 
servants  not  to  associate  with  another,  who  had  been  discharged;  Toogood  v. 
Spyring,  1  C.  M.  &  R.  181  (1834),  complaints  by  a  tenant  to  his  landlord 
or  "the  latter's  agent,  against  a  workman  sent  to  do  repairs:  Amann  v.  Damm, 
8  C  B.  (X.  S.)  597  (1860),  by  one  trader  to  another  against  a  clerk  of  the 
latter  sent  on  business  to  the  former's  premises;  Clapp  v.  Devlin,  35  N.  Y. 
Sup.  Ct.  170  (1872),  a  consignor  of  a  cargo,  in  an  interview  with  the  ship- 
owner in  which  he  claimed  that  part  of  the  cargo  had  not  been  delivered 
and  accused  the  captain  of  stealing  it;  Smith  v.  Smith,  73  Mich.  445  (1889), 
semble,  notice  to  tradesmen  not  to  give  credit  to  the  defendant's  wife, 
stated  to  have  deserted  him;  E'chard  v.  Morton,  26  Pa.  S.  C.  579  (1904). 
defendant,  when  confronted  with  a  deed  giving  a  right  of  way  over  his 
property,  the  existence  of  which  he  denied,  made  a  statement  implying  that 
it  was  forged;  Force  v.  Warren,  IS  C.  B.  N.  S.  806  (1864),  the  defendant, 
a  butcher,  had  accused  the  plaintiff,  a  customer,  of  stealing  meat,  the  plain- 
tiff threatened  him  with  an  action,  the  defendant^  turned  to  another  cus- 
tomer, present  throughout  the  occurrence,  and  said,  "She  stole  the  meat, 
did  you  not  see  her  do  it?";  Croft  v.  Stevens,  7  H.  &  N.  570  (1862),  a  per- 
son alleged  to  have  ordered  goods  from  a  tradesman  wrote  denying  the 
order,  which  he  stated  was  forged  by  the  plaintiff. 

A  solicitor  or  attorney  may  make  statements  necessary  for  the  pro- 
tection of  his  client's  interests  as  fully  as  he,  himself,  may  do,  Hanna  v.  De 
Blaqniere,  11  U.  Can.  Q.  B.  310  (1852)  ;  Margrave  v.  Le  Breton,  4  Burr.  2422 
(1769). 


EROW    t'.    HATHAWAY.  1057 

defendant  used  the  words  alleged,  he  was  liable,  "although  he  may 
have  believed  them  to  be  true  and  may  have  had  no  malicious  de- 
sign to  defame  the  plaintiff."  This  ruling,  as  it  seems,  must  have 
been  based  upon  the  ground,  either  that  the  occasion  was  not  one 
which  furnished  the  excuse  of  "privilege,"  or  that  the  defendant 
had,  by  some  abuse  of  the  privilege,  lost  the  benefit  of  its  protection. 
If  upon  the  former  ground,  we  think  it  was  wrong  as  matter  of  law, 
both  upon  the  authorities  and  upon  principle.  If  upon  the  latter, 
it  was  a  question  not  for  the  court,  but  for  the  jury. 

This  case  must  be  distinguished  from  those  in  which  the  party 
pleading  the  excuse  of  "privilege"  is  guilty  of  making  use  of  the 
occasion  to  utter  charges  of  a  character  foreign  to  its  legitimate 
purpose.  As,  for  instance,  if  this  defendant  had,  in  addition  to  his 
statements  in  relation  to  the  supposed  theft,  gone  on  to  criminate 
the  plaintiff  generally,  or  to  accuse  her  of  unchastity,  it  would  then 
have  been  the  duty  of  the  court,  in  an  action  for  uttering  such 
charges,  to  instruct  the  jury  that  as  to  such  words,  not  appropriate 
to  the  legitimate  objects  of  the  occasion,  it  furnished  the  defendant 
no  excuse  whatever.-  But  in  this  case  the  language  all  related  to 
the  subject  of  the  theft  which  they  were  investigating,  and  it  should 
have  been  left  to  the  jury  to  determine,  upon  all  the  circumstances 
of  the  case,  whether  the  defendant  was  guilty  of  actual  malice 

Exceptions  sustained. 


"Accord:  Chapman  v.  Battle,  124  Ga.  574  (1905),  similar  facts,  and  see 
Moore  v.  Butler,  48  N.  H.  161  (1868)  ;  Smith  v.  Smith,  73  Mich.  445  (1889), 
the  defendant  inserted,  m  a  notice  not  to  give  credit  to  his  wife  because 
of  her  desertion,  scandalous  and  unnecessary  imputations  upon  her ;  Findcn 
v.  Westlake,  Moody  &  Malkin  461  (1829);  Daniel  v.  Nezv  York  Nczvs  Pub. 
Co.,  21  N.  Y.  S.  862  (1893),  affirmed  without  an  opinion  142  N.  Y.  660  (1894), 
and  Tillinghast  v.  McLeod,  17  R.  I.  208  (1891),  semble. 

The  defendant  must  have  an  existing  interest  for  the  protection  of 
which  the  information  is  appropriate,  so  a  letter  written  by  the  agent  of  a 
defeated  candidate  for  parliament  to  the  agent  of  the  successful  candidate, 
accusing  him  of  bribery,  was  held  not  to  be  privileged,  Dickeson  v.  Hiltiard, 
L.  R.  9  Exch.  79  (1874).  The  recipient  must  be  a  person  whose  knowledge 
of  the  facts  communicated  will  advance  or  protect  the  defendant's  interests, 
Bailey  v.  Holland,  7  D.  C.  App.  184  (1895),  letter  by  a  stockholder  of  a  bank, 
owned  and  managed  by  negroes,  to  the  United  States  senator,  complaining 
of  the  conduct  of  the  plaintiff,  also  a  negro,  toward  the  bank  and  intimating 
that  being  false  to  his  race  he  should  be  removed  from  a  position  held  by 
him  in  the  government  service;  and  see  Sinnnonds  v.  Dunne,  Ir.  R.  5  C.  L. 
358  (1871),  and  Lynam  v.  Gozdng,  L.  R.  6  Ir.  259  (1880).  Nor  is  the  de- 
fendant privileged  to  introduce  into  a  letter,  though  written  on  a  matter  of 
business  interest  to  him,  charges  against  third  persons,  not  necessary  for  the 
protection  of  his  interests  or  the  proper  statement  of  his  business  position, 
Merchants  Insurance  Co.  v.  Buckner,  98  Fed.  222  (C.  C.  A.  6th  Circ.  Taft, 
Lurton  and  Day,  JJ.  1899) . 

But  if  the  occasion  be  privileged  it  is  immaterial  in  an  action  of  libel 
or  slander,  that  the  defendant  had  obtained  the  information  wrongfully, 
Thurston  v.  Charles,  21  Times  L.  R.  659  (1905),  defendant  wrongfully  con- 
verted to  his  own  use  a  letter  from  a  third  party  to  the  plaintiff  which  he 
showed  to  another,  whose  relation  to  him  made  the  occasion  privileged,  the 
plaintiff  joined  counts  in  libel  and  conversion,  it  was  held  he  could  not  re- 
cover in  the  first  count,  though  he  was  allowed  to  recover  in  the  second. 
It  is  equally  immaterial  that  the  communication  is  a  breach  of  confidence  or 


1058  GASSETT    V.    GILBERT. 

GASSETT  V.  GILBERT. 

Supreme  Judicial  Court  of  Massachusetts,  1856.     6  Gray  94. 

BiGELOw,  J.  There  can  be  no  doubt  that  the  publication  of  the 
notice  or  "caution  to  the  pubHc,"  set  out  in  the  declaration,  had  a 
direct  tendency  to  hold  the  plaintiff  up  to  public  reproach  and  dis- 
grace ;  and  was  therefore  actionable,  unless  it  falls  within  the  class 
of  communications  or  statements  usually  termed  privileged,  that  is, 
authorized  by  law,  notwithstanding  they  may  injuriously  affect  pri- 
vate character.  The  law  regards  the  publication  of  all  defamatory 
matter,  which  is  false  in  fact,  as  malicious,  and  affords  to  the  party 
injured  a  remedy  in  damages  therefor.  This  is  the  general  rule. 
But  there  are  cases  which  constitute  an  exception  to  it.  These  are, 
when  the  cause  or  occasion  of  the  publication  is  such  as  to  render 
it  proper  and  necessary  for  common  convenience  and  the  general 
^^elfaie  of  society  that  the  party  making  it  should  be  protected  from 
HaMlilyr  In  such  cases,  the  occasion  rebuts  the  inference  of  malice, 
which  the  law  would  otherwise  draw  from  an  unauthorized  publica- 
tion, and  renders  it  necessary  for  the  party  injured  to  show  actual 
malice,  or,  as  it  is  sometimes  called,  malice  in  fact,  as  an  essential 
element  in  support  of  his  action. 

The  precise  limits  within  which  the  publication  of  defamatory 
matter  is  allowed,  as  being  privileged  by  the  occasion,  are  best  de- 
fined by  Baron  Parke,  in  the  leading  case  of  Toogood  v.  Spyring, 
I  Cr.  M.  &  R.  193,  and  4  Tyrwh.  595.  It  is  there  laid  down,  that 
a  publication  "iairly  made  by  a  person  in  the  discharge  of  some 
p^ublic  or  private  duty,  whether  legal  or  moral,  or  in  the  conduct 
qf_  his  own  affairs  in  matters  where  his  interest  is  concerned,"' 
comes  within  the  class  of  privileged  or  authorized  communications. 
A  party  can  not  be  held  responsible  for  a  statement  or  publication 
tending  to  disparage  private  character,  if  it  is  called  for  by  the  ordi- 
nary exigencies  of  social  duty,  or  is  necessary  and  proper  to  enable 
him  to  protect  his  own  interest  or  that  of  another,  provided  it  is 
made  in  good  faith,  and  without  a  wilful  design  to  defame.  This 
general  statement  of  the  doctrine  on  this  point  seems  to  be  conso- 
nant with  sound  principle,  and  is  supported  by  numerous  authorities. 
Bui.  N.  P.  8.  Hargrave  v.  Le  Breton,  4  Bur,  2425.  Bromage  v. 
Prosser,  4  B.  &  C.  578.  Child  v.  Affleck,  9  B.  &  C.  403.  Somerville 
V.  Hazvkins,  10  C.  B.  583.    I  Stark.  Sland.  292. 

By  the  application  of  these  well-settled  principles,  the  question 
raised  in  the  present  case  can  be  satisfactorily  determined.  It  ap- 
pears that  the  defendants  were  the  directors  of  a  corporation  called 
the  Female  Medical  Education  Society,  established  for  the  purpose 
of  educating  females  in  the  science  of  medicine ;  that,  for  the  pur- 
pose of  raising  funds  in  aid  of  the  objects  contemplated  by  their 
act  of  incorporation,  they  had  resorted  to  the  method  of  obtaining 


professional  duty,  see  Robshaw  v.  Smith,  38  L.  T.  423   (1878);  Bower  on 
Actionable  Defamation,  126  n.   (c). 


GERARD   V.    DICKENSON.  IO59 

subscriptions  from  the  public  at  large  in  various  towns  of  this  com- 
monwealth, and  that  they  had  originally  employed  the  plaintiff  as  an 
agent  to  obtain  and  collect  such  subscriptions.  It  further  appears 
that  the  plaintiff  ceased  to  be  the  agent  of  the  corporation  in  De- 
cember, 1850,  and  her  authority  to  receive  subscriptions  and  collect 
money  in  their  behalf  was  then  revoked. 

There  can  be  no  doubt  that  it  was  the  duty  of  the  defendants, 
as  directors  of  the  corporation,  to  look  after  its  prudential  and  finan- 
cial concerns,  and  to  take  all  the  proper  measures  to  see  that  the 
money  raised  by  subscription,  in  aid  of  the  institution  under  their 
charge,  was  collected  and  appropriated  according  to  the  intention 
of  those  from  whom  it  was  obtained.  If  they  believed  that  the 
plaintiff,  after  her  authority  as  such  agent  had  ceased,  was  falsely 
representing  herself  as  still  authorized  to  collect  subscriptions  in  be- 
half of  the  corporation,  and  was  thereby  wrongfully  obtaining 
money  from  the  public,  they  were  justified  in  publishing  a  notice, 
couched  in  such  language  as  was  necessary  and  proper  to_  put  per- 
sons on  their  guard  against  her  unauthorized  representations,  and 
to  prevent  her  from  receiving  money  under  the  false  pretense  that 
it  was  collected  for  the  use  and  benefit  of  the  corporation.  Their 
private  interest  and  their  duty  to  the  public  alike  required  that  such 
notice  should  be  given,  if  they  believed  the  facts  stated  in  it  to  be 
true,  and  acted  honestly  and  in  good  faith  in  making  the  publica- 
tion. To  this  extent,  we  think  that  the  occasion  justified  the  de- 
fendants.^ 


GERARD  V.  DICKENSON. 

Court  of  King's  Bench,  1577.    2  Coke  Reports,  Part  IV.  18. 

The  plaintiff  declared  that  he  was  seised  of  the  manor  and 
castle  of  H.  in  the  county  of  Stafford  in  fee  by  purchase  from 
George  Lord  Audley :  and  that  he  was  in  communication  to  demise 
the  said  castle  and  manor  to  Ralph  Egerton  for  twenty-two  years, 
for  £200  fine,  and  £ioo  rental  per  annum;  and  that  the  defendant 
(prccmissorum  non  ignara)  said,  "I  have  a  lease  of  the  castle  and 
manor  of  H.  for  ninety  years ;"  and  then  and  there  showed  and  pub- 
lished a  demise  supposed  to  be  made  by  George  Lord  Audley,  grand- 

'  Accord:  Holmes  v.  Royal  Fraternal  Order,  222  ^lo.  556  (1909),  letter 
from  the  Order  to  its  members  notifying  them  of  the  removal  of  the  plain- 
tiff, as  collecting  officer,  giving  reasons  and  warning  them  not  to  pay  their 
dues  to  him;  Hatch  v.  Lane,  105  Mass.  394  (1870).  notice  to  customers  not 
to  pay  their  bills  to  a  discharged  employe,  who  the  defendant  stated  to  have 
"taken  upon  himself  the  privilege  of  collecting  my  bills ;"  Ncvill  v.  Fine  Art 
&■  Gen.  Ins.  Co..  L.  R.  1897,  A.  C.  68,  notification  to  customers,  etc.,  of  ter- 
mination of  plaintiff's  agencv,  but  see  Warner  v.  Clark.  45  La.  Ann.  863 
(1893);  Sheftall  v.  Cent,  of  Ga.  R.  Co.,  123  Ga.  589  (1905).  bulletin  issued 
by  the  company  to  its  conductors  warning  them  not  to  accept  certain  tickets 
stated  to  have  been  imprnnerlv  retained  hv  the  plaintiff,  a  discharged  con- 
ductor; Holmes  v.  Clisby.  121  Ga.  241  (\<X)4).  semble.  statements  by  a  manu- 
facturer that  genuine  first-hand  goods  could  be  only  procured  from  a  par- 
ticular retailer. 


I060  GERARD    7'.    DICKEXSON. 

father  to  the  said  George  Lord  Audley,  for  ninety  years,  to  Edward 
Dickenson  her  husband,  and  pubHshed  the  said  demise  as  a  true 
and  good  lease ;  and  so  affirmed  it,  and  offered  to  sell  it ;  ubi  re  vera 
the  said  lease  was  counterfeited  by  her  husband,  and  that  the  de- 
fendant knew  it  to  be  counterfeited ;  by  reason  of  which  words  and 
publication,  the  said  Ralph  Egerton  did  not  proceed  to  accept  the 
said  lease,  to  damage,  «S:c.  The  defendant  pleaded  in  bar,  quod  talis 
indcntura  {qualis  in  the  declaration  is  alleged)  came  to  the  defend- 
ant's hands  by  trover,  and  traversed  that  she  knew  of  the  forgery, 
upon  which  the  plaintiff  demurred  in  law.  And  in  this  case  three 
points  were  resolved,  i.  If  the  defendant  had  affirmed  and  pub- 
lished, that  the  plaintiff  had  no  right  to  the  castle  and  manor  of  H. 
but  that  she  herself  had  right  to  them,  in  that  case,  because  the  de- 
fendant herself  pretends  right  to  them,  although  in  truth  she  had 
none,  yet  no  action  lies.^  For  if  an  action  should  lie  when  the  de- 
fendant herself  claims  an  interest,  how  can  any  make  claim  of  title 
to  any  land,  or  begin  any  suit,  or  seek  advice  and  counsel,  but  he 
should  be  subject  to  an  action,  which  would  be  inconvenient. - 
Which  resolution  agrees  with  the  opinion  in  Banister's  Case  before, 


'The  later  cases  allow  an  action  against  even  a  rival  claimant  if  "made 
mala  fide  for  the  purpose  of  injuring  the  plaintiff  and  not  in  the  bona  fide 
defense  of  the  defendant's  own  property;"  Coleridge,  C.  J.  in  Halsey  v.  Broth- 
erhood, L.  R.  19  Ch.  Div.  386  (1881)  ;  LinviUc  v.  Rhoades,  72,  Mo.  App.  217 
(1898),  unless  made  in  the  pleadings  or  testimony  in  legal  proceedings  to 
assert  or  defend  a  supposed  right,  Bailey  v.  Dean,  5  Barb.  297  (N.  Y.  1848)  ; 
Mag  inn  v.  Schmick,  127  Mo.  App.  411  (1907). 

•Accord:  Hargrove  v.  Le  Breton,  4  Burr.  2422  (1769)  ;  Smith  v.  Spooner, 
3  Taunt.  246  (1810),  in  both,  notice  of  defendant's  adverse  claim  was  given 
at  auction  of  plaintiff's  property;  Ontario  Industrial  Loan  and  Investment 
Co.  V.  Lindsey,  4  Ont.  R.  473  (1883);  Hill  v.  Ward,  13  Ala.  310  (1848), 
notice  of  adverse  claim  given  to  intending  purchaser  of  slaves;  Bailey  v. 
Dean,  5  Barb.  297  (N.  Y.  1848),  semblc :  Butts  v.  Long,  106  Mo.  App.  313 
(1904);  Harrison  v.  Howe,  109  Mich.  476  (1896),  and  Hopkins  v.  Drowne, 
21  R.  I.  20  (1898),  notice  by  landlord  to  one  intending  to  sublet  from  tenant, 
that  the  lease  gave  no  right  to  do  so;  Stieh  v.  Todd,  11  Montg.  L.  R.  70  (Pa. 
1893),  notice,  at  sale  of  tenant's  goods,  of  a  levy  for  rent,  in  fact  discharged 
upon  payment;  McDaniel  v.  Baca,  2  Cal.  326  (1852),  notice  to  intending  pur- 
chaser that  plaintiff  had  obtained  the  property  from  the  defendant  by  fraud ; 
Duncan  v.  Griswold,  92  Ky.  546  (1892),  notice  that  judgment  held  by  de- 
fendant covered  land  about  to  be  sold  by  plaintiff;  Brady  v.  Carteret  Realty 
Co.,  67  X.  J.  Eq.  641  (1904),  semble,  notice  of  adverse  claim  at  sheriff's 
sale;  and  see  IValklcv  v.  Bostivick,  49  Mich.  374  (1882),  and  Thompson  v. 
White,  70  Cal.  135  (1886). 

So  one  claiming  to  own  a  patent  right,  or  that  a  certain  article  or 
process  is  covered  by  a  patent  owned  by  him,  may  notify  the  public  of  his 
claim  and  warn  them  against  infringing  upon  his  supposed  right;  Wren  v. 
Wcild,  L.  R.  4  Q.  B.  213  (1869)  :  Hovev  v.  Rubber  Tip  Pencil  Co.,  57  N.  Y. 
119  (1874)  ;  Squires  v.  Wason  Mfg.  Co.,  182  Mass.  137  (1902),  especially  if 
advised  bv  counsel  that  his  claim  is  valid,  Everett  Piano  Co.  v.  Bent,  60  111. 
App.  372 '(1895),  but  by  statute  7  Edw.  VII,  c.  29.  §  36,  he  must  show  that 
the  acts  complained  of  are  actually  infringements,  or  must  "with  due  dili- 
gence and  prosecute  an  action  for  infringement  of  his  patent,"  see  Skinner 
V.  Shezi.'.  L.  R.  1893,  1  Ch.  413.  So  one  believing  that  he  has  a  copyright  of  a 
poem  mav  publish  a  statement  that  the  publication  of  the  poem  by  others 
is  an  infringement  thereof.  Lovell  Co.  v.  Houghton,  116  N.  Y.  520  (1889). 
The   defendant's    statement   or  notice   must    show   that  he   is   asserting 


CARDOX    Z'.    IMC  COXXELL.  I06I 

2  E.  4.  5.  b.  &c.  15  E.  4.  32  a.  b.  no  action  upon  the  case  lies  against 
one  who  publishes  another  to  be  his  villain,  without  saying  that  he 
lies  in  wait  to  imprison  him,  et  tales  &  tantas  minas  in  ipsmn  fecit, 
quod  circa  negotia  sua  palam  inteudcre  non  audebat.  Vide  22  E.  3. 
I.  in  Cro.  Eliz.  197,  Conspiracy,  38  E,  3.  33.  43.  E.  3.  20.  F.  N. 
B.  116.  b.  And  therefore  it  was  resolved,  that  for  the  said  words, 
"I  have  a  lease  of  the  manor  of  H.  for  ninety  years,"  although  it  is 
false,  yet  no  action  lies  for  slandering  of  his  title  or  interest  in  the 
said  castle  and  manor.  And  although  it  appears  by  the  defendant's 
bar,  that  she  has  no  title  or  interest  in  the  said  lease,  but  is  a  stranger 
to  it ;  yet  forasmuch  as  the  matter  alleged  in  the  declaration  doth 
not  maintain  the  action,  the  bar  will  not  make  it  good.  2.  It  was 
resolved,  that  there  was  other  matter  in  the  declaration  sufficient  to 
maintain  the  action,  and  that  was  because  it  was  alleged  in  the  dec- 
laration that  the  defendant  knew  of  the  communication  of  the 
making  of  the  said  lease  to  Ralph  Egerton,  and  also  that  she  knew 
that  the  lease  was  forged  and  coiuiterfeited,  and  yet  (against  her 
own  knowledge)  she  has  affirmed  and  published,  that  it  was  a  good 
and  true  lease,  by  which  the  plaintiff'  was  defeated  of  his  bargain. 
Vide  5  E.  4.  126.  If  a  man  forges  a  bond  in  my  name,  and  puts  it 
in  suit  against  me,  by  which  I  am  vexed  and  damnified,  I  shall  have 
an  action  on  the  case,  42  Aff".  8.,  B.  offered  eight  oxen  to  sell  to  A.  as 
his  proper  goods,  knowing  them  to  be  the  proper  goods  of  P.  A. 
trusting  in  the  fidelity  of  B.  bought  them  for  £8  and  afterwards  P. 
retook  the  oxen ;  in  that  case  A.  shall  have  an  action  upon  the  case 
against  B. 

And  these  are  all  in  effect  all  the  cases  in  our  books. 


FAIRCLOTH,  C.  J.  IN  CARDON  v.  McCONNELL. 

Supreme  Court  of  North  Carolina,  1897.     120  A^.  C.  Rep.,  461. 

It  is  the  duty  of  one,  believing  that  he  has  such  a  claim  or  interest,  to 
proclaim  and  assert  it  when  a  sale  is  in  contemplation  by  another,  in  order 
that  innocent  persons  may  not  be  deceived  or  misled  to  their  injury.  If  one 
be  inquired  of,  he  must  speak  the  truth  as  he  understands  it  and  believes  it 
to  be.  If  he  is  present  at  a  public  sale  of  property  claimed  by  himself,  he 
must  speak  for  the  protection  of  purchasers  or  he  will  be  forever  estopped. 
If,  at  last,  upon  investigation,  the  defendant  fails  to  show  any  title  or  in- 


some  right  claimed  by  him,  it  is  not  enough  that  he  is  in  fact  a  rival  claim- 
ant, Ear/  of  Northumberland  v.  5yr/.  Cro.  Jac.  163  (1607),  and  even  one  speak- 
ing as  a  claimant  may  not  make  disparaging  statements  as  to  the  plaintiff's 
title  not  necessary  to  the  assertion  of  his  claim,  Brady  v.  Carteret  Realty  Co., 
67  N.  J.  Eq.  641   (1904). 

While  a  trader  is  not  privileged  in  positively  disparaging  his  rival's 
goods  in  order  to  prosper  at  his  expense,  Brown  v.  Vanaman,  note  to  O^rr 
V.  Schiffling,  ante,  IVhittemore  V.  Weiss,  ZZ  Mich.  348  (but  see  Clerk  and 
Lindsell  on  Torts,  6th  ed..  pp.  687-688),  it  seems  that  mere  disparaging 
comparison  of  a  rival's  goods  with  those  of  the  defendant  is  only  actionable, 
if  known  to  be  false  or  done  solely  to  injure  the  rival  and  without  any 
desire  for  self-advancement,  Herschell,  L.  C.  in  White  v.  Mellin,  L.  R.  1895, 
A.  C.  154,  pp.  160-161. 


I062  DWYER   V.    ES^tONDE. 

terest  in  possession  or  in  remainder,  still,  if  his  acts  were  done  in  good 
faith  at  the  time  he  spoke,  no  action  will  lie.  The  plaintiff,  claiming  damages, 
must  show  malice — that  there  was  no  probable  cause  for  the  defendant's 
belief — that  he  could  not  honestly  have  maintained  such  belief.  The  pre- 
vention of  a  sale  by  the  assertion  of  a  claim  by  A,  although  unfounded,  is 
not  actionable  unless  it  be  knowingly  bottomed  on  fraud.  4  Rep.  18;  4 
Burr.  2422. 

DWYER  V.  ESMONDE. 
Court  of  Appeal,  1878.    L.  R.  Ireland,  1878-79,  Vol.  II,  243. 

The  Lord  Chancellor  : — This  is  an  appeal  from  a  decision  of 
the  Court  of  Exchequer,  allowing  a  demurrer  to  a  plea  in  an  action 
for  libel.  The  plea  is  in  effect  that  the  publication  complained  of 
was  a  privileged  communication.  Air.  Esmonde  was  candidate  for 
the  representation  of  the  county  of  Waterford  in  Parliament.  In 
"The  Freeman's  Journal"  there  appeared  "an  address"  to  the 
farmers  of  that  county,  purporting  to  come  from  the  Kilkenny 
Farmers'  Association,  intended  to  injure  Mr.  Esmonde's  canvass, 
and  condemning  his  conduct  as  a  landlord,  particularly  in  relation 
to  the  present  plaintiff  Dwyer,  who  had  been  his  tenant,  and  was 
evicted  for  non-payment  of  rent.  Mr.  Esmonde  wrote  in  "The 
Freeman's  Journal,"  by  way  of  answer  to  this  address,  a  letter 
which  is  the  libel  now  complained  of.  The  plea  defends  its  publica- 
tion on  the  ground  that  the  publication  of  the  address  in  "The  Free- 
man's Journal"  was  caused  by  the  plaintiff  and  others,  that  journal 
being  extensively  circulated  in  the  county  of  Waterford  among  the 
electors ;  that  the  letter  sued  upon  was  written  and  published  in 
answer  to  the  charges  made  in  the  address  against  the  defendant,  in 
defense  of  himself  in  relation  thereto,  bona  fide,  without  malice, 
and  believing  the  same  to  be  true. 

It  is  to  be  observed  that  the  Court  of  Exchequer,  by  a  majority 
of  its  judges,  refused  to  admit  the  "Address  of  the  Kilkenny  Tenant 
Farmers'  Association"  to  be  read  upon  the  argument  of  the  de- 
murrer; whereas  this  Court,  by  a  majority  of  its  members,  has  de- 
cided that  this  address  is  incorporated  with  the  plea,  and  that  the 
entire  of  it  is  to  be  taken  into  consideration  by  the  Court.  We 
have,  therefore,  elements  for  our  judgment  which  the  Court  of  Ex- 
chequer had  not. 

The  address  makes  general  charges  against  Mr.  Esmonde  as 
landlord  of  a  property  in  Kilkenny ;  and  even  goes  so  far  as  to  desig- 
nate him  as  "the  true  type  of  a  bad  Irish  landlord,  the  scourge  of 
the  country."  But  for  the  purpose  of  the  present  appeal,  I  think 
attention  need  only  be  directed  to  such  allegations  as  relate  to  the 
present  plaintiff,  which  I  now  read : — 

"One  tenant,  John  Dwyer,  holding  sixty  acres,  met  with  an 
accident,  and  became  embarrassed — old  arrears  hanging  over  him ! 
Mr.  Esmonde  dispossessed  him ;  he  is  able  and  willing  to  undertake 
the  farm — yet  it  is  lying  waste  and  idle  on  Mr.  Esmonde's  hands 
for  the  last  two  years ;  and  let  that  gentleman  inform  you  whether. 


DWYER   1'.    ESMONDE.  I063 

with  the  keen  competition  for  the  land  in  the  locality,  it  is  the  bad 
land  or  the  bad  landlord  that  deters  any  man  from  becoming  his 
tenant,  or  for  a  long  time  from  becoming  even  a  caretaker  of  the 
farm  ?" 

The  charge  here  appears  to  be  by  no  means  confined  to  the  evic- 
tion from  the  farm ;  supposing  that  to  have  occurred  from  non-pay- 
ment of  rent,  caused  by  an  accident,  then  vv^hen  Dwyer  was  able  and 
willing  to  undertake  the  farm,  Mr.  Esmonde  still,  rather  than  set 
it  to  him,  keeps  the  land  idle  on  his  own  hands. 

The  charge  against  Mr.  Esmonde  being  of  this  character,  he 
defends  himself  by  giving  a  sketch  of  the  man  who,  it  is  alleged, 
should  have  been  retained,  or,  when  evicted,  reinstated  in  the  farm ; 
and  here  I  refer  to  the  document,  and  do  not  confine  myself  to  the 
extracts  in  the  plaint.  He  says  that  the  reason  why  he  ejected  John 
Dwyer  was  simply  for  non-payment  of  rent ;  that  the  Dwyer  family 
consisted  of  John  and  two  sisters,  and  that,  on  the  day  after  the 
execution  of  the  habere,  they  forced  the  lock  of  the  door,  and  were 
found  seated  before  the  fire  within  the  dwelling  house ;  the  aid  of 
the  sub-sheriff  had  again  to  be  called  in  before  he  could  regain  pos- 
session of  his  property;  that  for  nine  months  he  was  unable,  al- 
though he  advertised,  to  procure  a  caretaker  for  the  farm;  and, 
some  months  afterwards,  he  discovered  that  the  plaintiff^  had  got  a 
meadow  of  four  and  a-half  acres  mown,  and  had  carried  off  the 
hay  and  sold  it — a  matter  which  Mr.  Esmonde  suggests  was  a  crime 
for  which  Dwyer  could  have  been  made  amenable ;  that,  besides  all 
this,  Dwyer  had  acted  ill  to  his  sisters,  who  had  portions  charged  on 
the  very  farm — not  paying  them,  any  more  than  the  landlord ;  and, 
finally,  Mr.  Esmonde  points  out  that  it  was  due  to  a  threatening 
notice  that  the  land  had  not  been  let.  The  innuendos  of  the  plaint 
suggest  that  this  amounts  to  definite  charges  that  the  plaintiff'  was 
guilty  of  forcible  entry,  of  intimidating  anyone  from  becoming  care- 
taker, of  an  indictable  offence  in  selling  the  hay,  of  fraudulently 
retaining  from  his  sisters  their  portions,  and  of  being  instrumental 
in  having  the  threatening  notices  feloniously  sent  to  an  intending 
tenant  of  the  farm. 

The  case  of  O'Donoghue  v.  Hiissey,  Ir.  R.  5  C.  L.  124,  decided 
by  the  Irish  Court  of  Exchequer  Chamber,  established  that  if  a  per- 
son be  assailed  in  a  newspaper,  he  is  excused  if  in  self-defense  he 
has  recourse  to  the  public  press,  and  brings  forward  bona  fide,  with- 
out malice,  in  the  belief  that  they  are  true,  statements  having  rela- 
tion to  the  charge,  which,  in  themselves,  and  apart  from  the  occasion, 
would  be  libels  without  excuse.  The  circumstances  rebut  the  pre- 
sumption of  malice  otherwise  arising  from  the  words.  In  order  to 
take  the  present  case  out  of  this  rule,  it  is  argued  that  what  is 
alleged  by  Mr.  Esmonde  in  respect  of  the  plaintiff,  particularly  as 
to  his  conduct  to  his  sisters,  is  not  relevant  to  the  charge  made 
against  Mr.  Esmonde  in  the  Kilkenny  Farmer's  Address.  But  is 
this  so?  Observe  Air.  Esmonde  is,  in  that  document,  held  up  for 
condemnation,  not  only  in  respect  of  the  eviction  of  Dwyer,  but  also 
for  subsequently  excluding  him  from  the  farm,  when  it  is  said  he 


1064  DWVER   r.    ESMOXDE. 

was  able  to  undertake  it.  All  the  matters  put  forward  in  explana- 
tion of  the  course  adopted  had  their  origin  in  Dwyer's  original  posi- 
tion as  tenant.  The  portions  of  his  sisters  were  charged  upon  the 
farm,  and  payable  by  him  out  of  its  proceeds.  The  reasoning  is  in 
effect  that,  whether  regard  be  had  to  his  non-fulfilment  of  his 
obligations  to  his  landlord  or  his  sisters  in  connection  with  the  farm 
while  he  continued  tenant,  or  to  his  personal  conduct  after  he  was 
evicted,  he  is  not  a  person  whom  a  landlord  can  be  justly  censured 
for  not  restoring.  If  what  was  stated  tended  to  establish  that  con- 
clusion, it  was  relevant — perhaps  I  ought  to  go  farther,  and  say  that 
whatever  tended  to  establish  it  for  the  tribunal  to  which  the  address 
and  the  answer  were  both  directed,  namely,  the  electors  of  the 
county  of  Waterford,  was  also  relevant.  Whichever  test  we  adopt, 
it  appears  to  me  that  the  defamatory  matter  which  has  in  this  case 
been  complained  of  was  sufficiently  connected  with  the  vindication 
of  the  defendant's  character  to  remove  any  objection  to  its  publica- 
tion founded  upon  want  of  relevancy.  The  demurrer  should,  in  my 
opinion,  have  been  overruled,  of  course  with  costs,  in  the  court  be- 
low ;  and,  in  this  case,  we  think  the  plaintiff  must  also  pay  the  costs 
in  the  Court  of  Appeal, 

Morris,  C.  J. : — ^The  chief  reliance  of  the  plaintiff  during  the 
argument  has  been  on  the  fourth  charge ;  that  is,  that  the  plaintiff 
had  fraudulently  retained  from  his  sisters  sums  to  which  they  were 
entitled  under  their  father's  will,  charged  on  the  farm.  This  is  not 
a  charge  of  independent  and  unconnected  improper  conduct  by  the 
plaintiff,  but  of  improper  conduct  in  relation  to  his  tenancy  of  the 
farm  the  subject  of  discussion,  and  in  relation  to  which  farm  the 
plaintiff  had  accused  the  defendant  of  gross  misconduct  and  harsh- 
ness, as  landlord,  to  him  the  plaintiff,  as  his  tenant. 

Christian,  L.  J. : — Well,  Mr.  Esmonde,  thus  arraigned,  before 
the  electors  of  the  county  of  Waterford  in  particular,  as  one  utterly 
imfit  to  be  chosen  as  their  representative,  and  before  the  public  in 
general,  including  his  own  tenantry,  as  a  cruel  and  tyrannical  land- 
lord, had  two  courses  open  to  him : — he  might  either  have  thought 
of  what  he  owed  to  himself  as  a  man  and  a  proprietor,  and  to  the 
interests  of  public  order,  by  bringing  his  libellers  before  the  tri- 
bunals of  the  land ;  or,  he  might  only  have  regarded  his  chances  as  a 
candidate,  and  pleaded  at  the  bar  of  the  rural  forum  before  which 
his  assailants  had  brought  him.  Well,  he  chose  the  latter  course. 
Instead  of  an  action  or  an  indictment,  he  stooped  to  the  level  of  his 
assailants,  and  put  his  vindication  in  the  shape  of  a  letter  to  the 
editor  of  the  same  newspaper.  That  was  the  form  it  took,  but  in 
substance  the  persons  addressed  were  the  tenant-farmers  of  the 
county  of  Waterford.  And,  however  others  may  blame  his  choice 
of  a  course,  assuredly  it  does  not  lie  in  the  mouth  of  the  plaintiff'  or 
of  his  co-libellers  to  do  so.  Under  these  circumstances,  it  is  as 
plain  a  proposition  as  was  ever  enunciated  that  the  occasion  gave 
to  Mr.  Esmonde  a  privilege  of  laying  before  the  electors  of  the 
county  he  was  canvassing  every  circumstance  of  Dwyer's  conduct 
in  relation  to  the  farm — (I  might  put  it  further,  but  it  is  needless 


^1 


MC  DOUGALL    Z'.    CLARIDGE.  IO65 

to  do  so) — which  would  be  calculated  to  satisfy  ordinarily  reason- 
able men  that  he  was  one  whom  a  just  and  even  an  indulgent  land- 
lord might  reasonably  object  to  retaining,  still  more,  to  reinstating 
on  his  land.  That  those  circumstances  would  be  in  the  highest  de- 
gree defamatory,  if  Dwyer  himself  had  not  been  the  aggressor, 
might  make  them  all  the  more  proper  to  be  covered  by  the  privilege, 
because  all  the  more  demonstrative  of  Dwyer's  objectionableness. 
The  defendant  might,  in  exercising  this  privilege,  fall  into  excesses 
of  phrase  or  intemperance  in  expression  which  would  indicate  an 
animus  going  beyond  the  bounds  of  self-defense.  But  the  effect  of 
that  would  be,  not  to  take  the  subject  out  pf  the  privilege,  but  to 
constitute  evidence  from  which  the  jury  might  or  might  not  infer 
malice  in  fact ;  the  malice  in  law,  which  is  implied  prima  facie  in  the 
mere  publishing  of  defamatory  matter  being  repelled  by  the  privi- 
lege of  the  occasion.^ 


(b)  Communications  for  the  protection  of  the  common  interests 
of  the  maker  and  recipient. 


/  McDOUGALL  v.  CLARIDGE. 

Court  of  King's  Bench,  1808.     1  Campbell.  267. 

This  was  an  action  for  a  libel  on  the  plaintiff*  in  his  profession 
as  a  solicitor. — Plea,  the  general  issue. 

The  libel  set  out  in  the  declaration  was  contained  in  a  letter 
written  by  the  defendant  to  Messrs.  Wright  &  Co.,  bankers  at  Not- 
tingham, and  charged  the  plaintiff  with  improper  conduct  in  the 
management  of   their  concerns.     It  appeared,  however,  that  the 

^Accord:  Hermmings  v.  Gasson,  E.  B.  &  E.  346  (1858)  :  Hibbs  v.  JVi! kin- 
son,  1  F.  &  F.  608  (1859)  ;  Koenig  v.  Ritchie,  3  F.  &.  F.  413  (1862)  ;  Reg.  v. 
Veley,  4  F.  &  F.  1117  (1867)  ;  Laughton  v.  Bishop  of  Sodor  and  Man,  L.  R. 
4  P.  C.  495  (1872).  p.  508;  Miellv  v.  Soiile,  49  La.  Ann.  800  (1897)  ;  Shep- 
herd V.  Baer,  96  Md.  152  (1902)  ;  Mvers  v.  Kaichen,  75  Mich.  272  (1889)  ; 
Fish  V.  St.  Louis,  etc..  Publishing  Co.,  102  ^lo.  App.  6  (1903),  scinblc: 
Chaffin  V.  Lynch,  83  Va.  106  (1887).  84  Va.  884  (1888) _.  and  an  agent  of  a 
corporation  may  answer  an  attack  upon  it,  Koenig  v.  Ritchie,  supra. 

But  one  insult  does  not  justify  or  be  set  ofif  against  another,  Bourland 
V.  Eidson.  8  Grat.  27  (Va.  1851),  and  the  fact  that  the  plaintiff  had  slandered 
or  libeled  the  defendant  does  not  justify  him  in  publishing  orally,  Senior 
V.  Medland,  4  Jur.  N.  S.  1039  (1858),  De  Pezv  v.  Robinson,  95  Ind.  109 
(1884),  or  in  the  public  press,  defamatory  statement  in  regard  to  the  plaintiff 
not  responsive  to  or  explanatory  of  the  latter's  attack.  Fish  v.  St.  Louis,  etc., 
Publishing  Co.,  102  Mo,  App.  6  (1903),  Xavier  v.  Oliver,  80  App.  Div.  292 
(N.  Y.  1903),  nor,  while  he  can  accuse  him  of  untruthfulness  or_  "propensity 
to  make  injurious  statements  devoid  of  foundation"  and  give  instances  of 
indulgence  therein,  O'Donoghne  V.  Hnssey,  It.  R.  5  C.  L.  124  (1871),  may 
he  accuse  him  of  unconnected  crimes  to  show  him  to  be  degraded  and  so 
unworthv  of  credit,  Brewer  v.  Chase.  121   Mich.  526  (1899). 

In  Murphy  v.  Halpin,  Ir.  R.  8  C.  L.  127  (1874),  it  was  held  that  the  de- 
fendant was  not  privileged  to  publish  in  the  public  papers  an  attack  upon  the 
plaintiff,  in  answer  to  statements  made  by  the  latter  at  a  meeting  of  a  board 


I066  MC  DOUGALL   V.    CLARIDGE. 

letter  was  intended  as  a  confidential  communication  to  these  gentle- 
men, and  that  the  defendant  was  himself  interested  in  the  affairs 
which  he  supposed  to  be  mismanaged  by  the  plaintiff. — After  the 
case  had  been  opened  by  the  plaintiff's  counsel — 

Lord  Ellexborough  said,  if  the  letter  had  been  written  by  the 
defendant  confidentially,  and  under  the  impression  that  its  state- 
ments were  well  founded,  he  was  clearly  of  opinion  that  the  action 
could  not  be  maintained.  It  was  impossible  to  say  that  the  defendant 
had  maliciously  published  a  libel  to  aggrieve  the  plaintiff,  if  he  was 
acting  bona  fide,  with  a  view  to  the  interests  of  himself  and  the  per- 
^ons^vhom  he  addressed  ;  and  if  a  communication  of  this  sort,  which 
was  not  meant  to  go  beyond  those  immediately  interested  in  it,  were 
^the_subject  of  an  action  for  damages,  it  would  be  impossible  for 
^the  affairs  of  mankind  to  be  conducted.^    His  Lordship  referred  to 

of  guardians  of  which  he  was  a  member,  though  reported  without  his  pro- 
curement or  consent  in  a  newspaper. 

As  to  the  right  in  private  communications  to  cast  imputations  upon  others 
or  to  comment  publicly  upon  their  conduct  in  repelling  a  charge  made  against 
oneself  or  in  explaining  one's  conduct  so  as  to  prevent  injurious  interpre- 
tations being  put  upon  it,  see  Coward  v.  Wellington,  7  C.  &  P.  531  (1836). 
JVIiitelev  V.  Adavis,  15  C.  B.  (N.  S.)  392  (1863),  and  O'Connor  v.  Sill,  60 
Mich.  175  (1886). 

^  So  the  stockholders  of  a  company  may  inform  one  another  or  the  offi- 
cers of  the  company  of  anything  which  they  honestly  believe  to  have  been 
done  by  a  fellow  stockholder,  official,  or  emploj-e  of  the  company  prejudicial  to 
their  joint  interest,  either  privatelv.  Chambers  V.  Leiscr,  43  Wash.  285  (1906)  ; 
Quart::  Hill  Co.  v.  Bcall,  L.  R.,  20  Ch.  Div.  501  (1882);  Hancy  v.  Trost, 
34  La.  Ann.  1146  (1882)  ;  Scullin  v.  Harper,  78  Fed.  460  (C.  C.  A.  1897).  or 
in  a  meeting  of  the  stockholders,  Parsons  v.  Surgey,  4  F.  &  F.  247  (1864)  ; 
Broughton  v.  McGrew,  39  Fed.  672  (1889).  So  a  member  of  an  association, 
social,  beneficial,  fraternal  or  professional  may  make  complaint  to  the  society 
or  its  officers  of  supposed  conduct  of  a  fellow  member  in  violation  of  the 
bv-laws  or  prejudicial  to  it  or  contrary  to  its  objects  and  ideals,  McKnight  v. 
Hasbrouck,  17  R.  I.  70  (1890);  Graham  v.  State,  6  Ga.  App.  436  (1909); 
Love  joy  v.  Whitcomb,  174  }ilass.  586  (1899),  semble,  if,  and  only  if,  such 
complaint  is  made  in  order  to  bring  about  an  investigation  leading  to  the 
expulsion  or  discipline  of  the  offending  member. 

So  a  corporation  maj^  inform  its  stockholders  by  letter  or  circular  of  the 
supposed  misconduct  of  an  officer  or  emplovee,  P.  IV.  &  B.  R.  Co.  v.  Quig- 
ley,  21  How.  202  (U.  S.  1858)  :  Laitlcss  v.  Anglo-Egyptian  Cotton  &  Oil  Co.. 
L.  R.  4  Q.  B.  262  (1869),  or  ma}'-  explain  its  corporate  acts,  though  the  expla- 
nation is  defamatory-  to  third  persons,  Montgomery  v.  Knox,  23  Fla.  595 
(1887).  The  same  privilege  attaches  to  the  reports  of  a  college  board  of 
trustees  to  its  contributors  of  its  reasons  for  removing  its  president,  Gattis 
V.  Kilgo,  140  X.  Car.  106  (1905),  or  of  a  fraternal  association  to  its  members 
of  the  expulsion  of  a  member,  Kirkpatrick  v.  Eagle  Lodge,  26  Kans.  384 
(1881). 

In  Redgate  v.  Roush,  61  Kans.  480  (1900),  it  is  held  that  the  officers  of 
a  church  may  communicate  to  all  the  other  members  of  the  same  denomina- 
tion, through  the  medium  of  their  church  papers,  notice  of  the  disposition  of 
their  pastor  and  the  reasons  therefor,  Shtirtlcff  v.  Stevens,  51  Vt.  501  (1879)  ; 
Konkle  v.  Haven,  140  .Mich.  472  (1905)  ;  Clark  v.  Molvneiix,  L.  R.  3  Q.  B.  D. 
237  (1877)  ;  IVhitelcv  v.  Adams,  15  C.  B.  (X.  S.)  392  (1863)  ;  James  v.  Bos- 
ton, 2  C.  &  K.  4  (1845);  and  compare  Shurtleff  v.  Parker,  130  Mass.  293 
(1881),  where  it  was  held  that  a  member  of  and  a  preacher  in  one  congrega- 
tional association  was  not  privileged  to  inform  a  member  of  another  such 
association  of  the  supposed  character  of  another  member  of  the  latter,  who 
was  in  fact  a  dismissed  preacher, 


HARRISOX    V.    BUSH.  1067 

a  case  of  Cleaver  v.  Sarrande,  tried  on  the  northern  circuit  while  he 
was  at  the  bar ;  where,  in  an  action  hke  the  present,  it  appeared  that 
the  letter  had  been  written  confidentially  to  the  Bishop  of  Durham, 
who  employed  the  plaintiff  as  steward  to  his  estates,  to  inform  him 
of  certain  supposed  mal-practices  on  the  part  of  the  plaintiff;  upon 
which  the  judge  who  presided  declared  himself  of  opinion,  that 
the  action  was  not  maintainable,  as  the  defendant  had  been  acting 
jona  Me;  and  the  nonsuit  which  he  directed  had  been  acquiesced 
in,  from  a  conviction  entertained  by  the  plaintiff's  counsel  of  its 
being  founded  in  law. 

HARRISON  V.  BUSH. 

Queen's  Bench,  1855.    5  Ellis  &  Blackburn,  344. 

Lord  Campbell,  C.  J.,  in  this  term  (May  24th)  delivered  the 
judgment  of  the  court. ^ 

This  was  an  action  for  a  libel,  tried  before  my  Brother  Crowder 
at  the  last  Salisbury  assizes.  The  defendant  pleaded  not  guilty,  and 
a  justification. 

It  appeared  that  Dr.  Harrison,  the  plaintiff,  before  and  at  the 
time  when  the  cause  of  action  accrued,  was  a  justice  of  peace  for  the 
county  of  Somerset,  and  was  in  the  habit  of  acting  at  petty  sessions 
held  in  the  borough  of  Frome.  In  the  month  of  October  last,  there 
was  a  contested  election,  for  a  member  to  represent  this  borough  in 
Parliament.  During  the  election,  there  was  much  excitement ;  many 
windows  were  broken  by  the  mob ;  and  there  were  dangerous  riots 
in  the  streets.  The  defendant  was  an  elector  and  an  inhabitant  of 
the  borough ;  and,  after  the  election  was  over,  he  and  several  hun- 
dred other  inhabita'nts  of  the  borough  prepared,  signed  and  trans- 
mitted to  Viscount  Palmerston  a  memorial  complaining  of  the  con- 
duct of  the  plaintiff  as  a  magistrate  during  the  election,  imputing  to 
him  that  he  had  made  speeches  directly  inciting  to  a  breach  of  the 
peace ;  that,  after  reading  the  Riot  Act,  he  had  sent  a  man  into  the 

In  the  following  cases  statements  made  for  the  protection  of  a  common 
interest  were  held  privileged,  Knight  v.  Gihbs,  1  A.  &  E.  43  (1834),  landlord 
made  statements  to  tenant  as  to  inmates  of  the  house  occupied  by  the  latter; 
Wilson  V.  Robinson,  7  Q.  B.  68  (1845),  statements  by  one  who  had  sold  his 
interest  in  a  vessel  to  the  other  joint  owner,  as  to  the  plaintifif's  conduct 
while  managing  their  joint  interests;  Hamon  v.  Falle,  L.  R.  4  A.  C.  247 
(1879),  an  insurance  company  wrote  to  an  owner  of  a  vessel  refusing  to  in- 
sure it  if  the  plaintiff  was  made  the  captain  of  the  vessel;  Wagner  v.  Scott,  * 
164  Mo.  289  (1901),  the  defendant  and  the  person  to  whom  the  statement 
was  made  jointly  employed  the  plaintiff;  Trimble  v.  Morrish,  152  Mich.  624 
(1908),  doctor  made  defamatory  statements  to  a  druggist,  who  by  contract 
had  the  right  to  fill  the  doctor's  prescriptions,  in  regard  to  the  druggist's 
clerk;  Allen  v.  Cape  Fear,  etc.,  R.  Co.,  100  N.  Car.  397  (1888)  ;  JVarner  v. 
Missouri  Pacific  R.  Co..  112  Fed.  114  (1901),  statements  in  regard  to  con- 
signor of  freight,  made  by  one  connecting  railroad  to  another;  and  see  JVte- 
vian  V.  Mabee,  45  Mich.  484  (1881). 

^  Only  so  much  of  the  opinion  is  given  as  relates  to  the  question  as  to 
whether  the  memorial  was  privileged  if  sent  to  a  person  who  had  the  power 
to  remove  the  plaintiff  from  his  magistracy. 


I068  HARRISON    V.    BUSH. 

Streets  armed  with  a  bludgeon,  and  ordered  him  to  strike  any  per- 
son he  might  meet,  indiscriminately  ;  and  that  he  had  himself  violent- 
ly struck  and  kicked  several  men  and  women.  The  memorial  alleged 
that  the  plaintiff  ought  not  to  be  allowed  to  remain  in  her  Majesty's 
commission  of  the  peace,  and  concluded  thus:  "Yo^'r  memorialists 
therefore  earnestly  pray  that  your  Lordships  will  cause  such  an 
inquiry  to  be  made  into  the  conduct  of  the  said  Dr.  Harrison  as 
your  Lordship  may  think  fit ;  and  that,  on  the  allegations  contained 
in  the  memorial  being  duly  substantiated  and  verified,  your  Lord- 
ship will  feel  it  to  be  your  duty  to  recommend  to  her  Majesty  that 
the  said  Dr.  Harrison  be  removed  from  the  commission  of  the 
peace." 

The  learned  judge  said  that,  on  the  authority  of  Blagg  v.  Sturt, 
lo  O.  B.  899,  he  should  rule  that  the  memorial  to  the  Secretary  of 
State  was  not  a  privileged  communication,  but  would  reserve  leave 
to  the  defendant  to  move  to  enter  a  verdict  for  him,  if  the  jury 
found  hona  fides. 

A  rule  has  been  obtained  to  enter  a  verdict  for  the  defendant ; 
and  this,  we  think,  ought  to  be  made  absolute. 

During  the  argument,  a  legal  canon  was  propounded  for  our 
guidance  by  the  plaintiff's  counsel ;  and  this  we  are  willing  to  adopt, 
as  we  think  that  it  is  supported  by  the  principles  and  authorities 
upon  which  the  doctrine  of  privileged  communications  rest.  "A 
communication  made  bona  fide  upon  any  subject-matter  in  whicli 
the  party  communicating  has  an  interest,  or  in  reference  to  which 
he  has  a  duty,  is  privileged,  if  made  to  a  person  having  a  correspond- 
ing interest  or  duty,  although  it  contain  criminatory  matter  which, 
without  this  privilege,  would  be  slanderous  and  actionable."  In  the 
present  case,  little  need  be  said  to  show  that  the  communicator  had 
both  an  interest  and  a  duty  in  the  subject-matter  of  the  communi- 
cation. Assuming  that  Dr.  Harrison  had  misconducted  himself  as 
a  magistrate  in  the  manner  alleged,  all  the  electors  and  inhabitants 
of  Frome  had  suffered  a  grievance  by  a  magistrate  having  fomented 
the  riot  instead  of  quelling  it,  and  having  endangered  instead 
of  protecting  life  and  property  within  the  borough.  They  have  an 
interest  that  they  may  not  longer  remain  subject  to  the  jurisdiction 
of  a  magistrate  who  so  violates  the  law.  Again,  if  Dr.  Harrison  had 
so  misconducted  himself  as  a  magistrate,  he  had  committed  an 
offence ;  and  it  was  the  duty  of  those  who  witnessed  it  to  try  by  all 
reasonable  means  in  their  power  that  it  should  be  inquired  into  and 
punished.  "Duty,"  in  the  proposed  canon,  cannot  be  confined  to 
legal  duties  which  may  be  enforced  by  indictment  action,  or  man- 
damus, but  must  include  moral  and  social  duties  of  imperfect  obliga- 
tion. One  mode  of  proceeding  for  this  offence  would  have  been  by 
applying  to  us  for  a  criminal  information,  and  seeking  to  have  the 
offender  punished  by  fine  and  imprisonment.  But  another,  which, 
though  milder,  may  be  more  effectual,  is  to  try  by  lawful  and  con- 
stitutional means  to  have  the  offender  removed  from  his  ofiice,  with- 
out calling  down  upon  him  the  sentence  of  a  criminal  court.  In  this 
land  of  law  and  liberty,  all  who  are  aggrieved  may  seek  redress; 


HARRISON    V.    BUSH.  I069 

and  the  alleged  misconduct  of  any  who  are  clothed  with  public 
authority  may  be  brought  to  the  notice  of  those  who  have  the  power 
and  the  duty  to  inquire  into  it,  and  to  take  steps  which  may  prevent 
the  repetition  of  it.^ 

But  it  was  hardly  contended  that  this  memorial  would  not  have 
a  privileged  communication  if  it  had  been  addressed  to  a  public 
functionary  possessing  the  direct  power  of  removing  a  magistrate 
from  the  commission  of  the  peace. 

We  think  that  we  are  not  called  upon  at  present  to  decide  how 
far  an  honest  mistake  in  seeking  redress  subjects  a  person  to  civil 
or  criminal  responsibility ;  and  we  give  no  opinion  on  the  question 
whether  action  or  indictment  could  be  maintained  against  individuals 
living  under  the  jurisdiction  of  a  county  court  judge  in  the  county 
palatine  of  Lancaster,  who  should  bona  fide  present  a  criminatory 
memorial  against  him  to  the  Lord  High  Chancellor,  praying  for  his 
removal,  instead  of  presenting  it  to  the  Chancellor  of  the  Duchy 
of  Lancaster,  in  whom,  and  in  whom  alone,  the  power  of  removing 
him  is  vested.^ 

We  are  of  opinion  that  the  defendant  fell  into  no  mistake  what- 
ever in  the  course  which  he  adopted,  and  that,  although  he  might 
have  addressed  the  memorial  to  the  Lord  Chancellor,  in  which  case 
it  certainly  would  have  been  privileged,  it  is  equally  privileged  being 
addressed  to  the  Secretary  of  State.  Rule  absolute.* 

-  So  complaints  of  the  conduct  of  an  official,  made  to  his  superiors,  for 
the  purpose  of  obtaining  redress  or  of  securing  better  bebavior  in  the  fu- 
ture, are  privileged,  Woodward  v.  Lander,  6  C.  &  P.  548  (1834)  ;  Corbett  v. 
Jackson,  1  U.  C.  Q.  B.  128  (1843)  ;  Mclntirc  v.  McBean,  U  U.  C.  Q.  B.  534 
(1855),  and  so  is  a  petition  to  a  governor  to  veto  a  bill,  Wood  v.  Wiman, 
122  N.  Y.  445  (1890),  a  taxpayer's  protest  against  tbe  allowance  of  fees 
charged  by  a  State's  Attorney,  Young  v.  Richardson,  4  111.  App.  364  (1879), 
or  a  petition  remonstrating  against  the  granting  of  a  liquor  license,  Vander- 
zee  V.  McGregor,  12  Wend.  545  (N.  Y.  1834)  ;  Colonev  v.  Farrow,  5  App.  Div. 
(N.  Y.)  607  "(1896)  ;  Mctzler  v.  Romine.  9  Pa.  Co.  Ct.  R.  171  (1890)  ;  Werner 
V.  Ascher,  86  Wis.  349  (1893),  semhle. 

So  petitions  to  the  king  or  parliament,  or  a  secretary  of  state,  for  the 
redress  of  a  grievance  are  held  privileged  in  Fairman  v.  Ives,  5  B.  &  Aid.  642 
(1822);  Rogers  v.  Spalding,  1  U.  C  Q.  B.  258  (1843).  Rcid  v.  Delorme,  2 
Brev.  76  (S.  Car.  1806),  petition  to  legislature  complaining  of  the  failure  of 
the  Attorney-General  to  institute  certain  prosecution. 

^  Defamatory  statements  as  to  the  conduct  of  public  officers  are  not  privi- 
leged if  made  to  the  public,  Werner  v.  Ascher,  supra,  or  to  an  -official  known 
to  have  no  power  to  investigate  the  matter  and  remove  or  control  such  offi- 
cers, Logan  v.  Hodges,  146  N.  Car.  38  (1907),  and  see  Callahan  v.  Ingram, 
122  Mo.  355  (1894). 

Nor  are  statements  of  the  purely  private  conduct  of  a  public  officer,  hav- 
ing no  connection  with  his  public  duties,  Wood  v.  Boyle,  \77  Pa.  St.  620 
(1896).  ,.       ^ 

As  to  the  right  of  the  community  to  know  how  their  public  officers  con- 
duct themselves,  and  so  a  newspaper's  privilege  to  publish  in  good  faith  infor- 
mation thereof  honestly  and  with  good  cause  believed  to  be  true,  see 
O'Ronrke  v.  Lewiston  Sun,  89  Maine  310  (1896),  but  mere  gossip  or  rumors 
affords  no  justification,  especially  if  the  defendant  refuse  or  neglect  an  op- 
portunity offered  by  the  plaintiff  to  investigate  their  truth.  State  v.  Ford.  82 
Minn.  452  (1901). 

*  Accord:  Communications  or  petitions  asking  for  the  removal  of  a  pub- 
lic officer  addressed  to  a  person  or  body  having  power  of  removal;  White  v. 


I070  COLEMAN    V.    MAC  LEXXAX. 

COLEMAN  V.  MacLEXNAN. 
Supreme  Court  of  Kansas,  1908.    78  Kansas  Reports,  711. 

BuRCH,  J.  The  moral  and  social  duty  of  members  of  a  great 
fraternity,  or  of  a  great  church  organization,  to  inform  their  brothers 
of  the  scandalous  conduct  of  a  fellow  member  or  one  of  their 
leaders,  is  no  higher  or  stronger  than  that  of  electors  to  keep  the 
public  administration  pure  by  warnings  respecting  the  character 
and  conduct  of  a  candidate  for  oi^ce;  and  if  false  words  are  not 
actionable  in  one  case,  unless  published  with  actual  malice,  they  are 
privileged  to  the  same  extent  in  the  other.  Such  is  the  clear  declara- 
tion of  the  court  in  the  case  of  The  State  v.  Balch,  31  Kans.  465, 
2  Pac.  609.  True,  that  was  a  criminal  case,  but  the  rule  of  privi- 
lege is  the  same  in  both  civil  and  criminal  actions.  It  is  the  occa- 
sion which  gives  rise  to  privilege,  and  this  is  unaffected  by  the  char- 
acter of  subsequent  proceedings  in  which  it  may  be  pleaded. 

In  Balch's  case,  a  printed  article  making  grave  charges  against 
the  character  of  a  candidate  for  county  attorney,  was  circulated 
among  the  voters  of  the  county  previous  to  the  election.     In  the^ 
opinion  holding  the  occasion  to  be  privileged  the  court  said : 

"If  the  supposed  libelous  article  was  circulated  only  among  the 
voters  of  Chase  county,  and  only  for  the  purpose  of  giving  what 
the  defendants  believed  to  be  truthful  information,  and  only  for 
the  purpose  of  enabling  such  voters  to  cast  their  ballots  more  intel- 
ligently, and  the  whole  thing  was  done  in  good  faith,  we  think  the 

Nicholls,  3  How.  266  (U.  S.  1845) ;  Pearce  v.  Brower,  72  Ga.  243  (1884)  : 
Greenwood  v.  Cohbey,  26  Nebr.  449  (1889)  ;  State  v.  Biirnham,  9  N.  H.  34 
(1837)  ;  Frank  v.  Dessena,  5  N.  J.  L.  Journ.  185  (1882)  ;  Thorn  v.  Blanchard, 

5  Johns.  508  (N.  Y.  1809);  Van  Wyck  v.  Aspinwall,  17  N.  Y.  190  (1858); 
report  of  a  committee  of  the  College  of  Pharmacy  to  the  Secretary  of  the 
United  States  Treasury,  complaining  of  the  conduct  of  an  inspector  of 
drugs;  Bradsher  v.  Cheek,  109  N.  Car.  278  (1891)  ;  Gray  v.  Pcntland,  2  Serg. 

6  R.  23  (Pa.  1815)  ;  Kent  v.  Bongarta,  15  R.  I.  72  (1885)  ;  Hart  v.  von  Gum- 
pach,  L.  R.  4  P.  C.  439  (1872),  complaint  by  a  Chinese  official  to  Chmese 
board  of  conduct  of  a  professor  in  its  employ;  or  to  a  committee  or  officer 
investigating  his  conduct,  Blakeslee  v.  Carroll,  64  Conn.  223  (1894)  :  Beatson 
V.  Skene,  5  H.  &  N.  838  (1860)  :  Communications,  petitions  and  complaints 
agamst  public  school  teachers  made  to  school  boards,  etc.,  Bodwell  v.  Os- 
good, 3  Pick.  379  (Mass.  1825)  ;  Decker  v.  Gaylord,  35  Hun  584  (N.  Y.  1885)  ; 
Malone  v.  Carrico,  16  Ky.  L.  155  (1894)  ;  Communications  as  to  character  of 
an  applicant  for  office  made  to  persons  having  power  of  appointment,  Cooglcr 
V.  Rhodes,  38  Fla.  240  (1902)  ;  Harris  v.  Huntington,  2  Tyler  129  (Vt.  1802). 
or  to  an  officer  investigating  the  character  of  the  applicant,  Posnett  v.  Mar- 
ble, 62  Vt.  481  (1889),  or  to  a  senator,  who  as  such  votes  upon  the  confirma- 
tion of  the  applicant's  nomination,  Law  v.  Scott,  5  Har.  &  J.  438  (Md.  1822). 

Such  petitions  and  communications  are  qualifiedly,  not  absolutely,  privi- 
leged, Proctor  V.  Webster,  L.  R.  16  Q.  B.  Div.  112  (1885)  ;  Dickson  v.  Wd- 
ton  1  F.  &  F.  419  (1859),  and  cases  cited  above,  but  see  Larkjn  v.  Noonan, 
19  Wis.  82  (1865).  In  Howard  v.  Thompson,  21  Wend.  319  (N.  X.  1839).  it 
is  held  that  the  action  for  such  a  complaint  while  in  form  for  libel  is  in  sub- 
stance for  malicious  prosecution  and  plaintiff  must  show  both  lack  of  prob- 
able cause  and  malice,  accord.  Cook  v.  Hill.  3  Sandf.  341  (N.  Y.  1849),  and 
compare  Woods  v.  Wiman,  122  N.  Y.  445  (1890). 


COLEMAX    Z'.    MAC  LENNAN.  IO7I 

article  was  privileged  and  the  defendants  should  have  been  acquitted, 
although  the  principal  matters  contained  in  the  article  were  untrue 
in  fact  and  derogatory  to  the  character  of  the  prosecuting  witness. 
*  *  *  Generally,  we  think,  a  person  may,  in  good  faith,  publish  what- 
ever he  may  honestly  believe  to  be  true,  and  essential  to  the  protec- 
tion of  his  own  interests  or  the  interests  of  the  person  or  persons  to 
whom  he  makes  the  publication,  without  committing  any  public 
oflfense,  although  what  he  publishes  may,  in  fact,  not  be  true  and 
may  be  injurious  to  the  character  of  others.  And  we  further  think 
that  every  voter  is  interested  in  electing  to  office  none  but  persons 
of  good  moral  character,  and  such  only  as  are  reasonably  qualified 
to  perform  the  duties  of  the  office.  This  applies  with  great  force  to 
the  election  of  county  attorneys." 

The  plaintiff  asks  that  the  decisions  of  this  court  quoted  aoove 
be  overruled,  and  that  they  be  supplanted  by  one  which  shall  express 
the  narrow  conception  of  the  law  of  privilege  held  by  the  majority 
of  the  courts. 

The  fact  that  so  many  courts  of  this  country,  all  ot  high  charac- 
ter, of  great  learning  and  ability,  and  all  equally  interested  in  cor- 
rectly solving  the  problems  of  free  government,  differ  from  us, 
makes  us  pause  ;  but  a  reversal  of  policy  and  the  overturning  of  what 
has  been  so  long  accepted  as  settled  law  would  be  tantamount,  under 
the  circumstances,  to  legislation.  Such  a  step  ought  not  to  be 
urged  upon  the  court  except  for  conclusive  reasons.  What  are  the 
reasons  supporting  the  majority  rule?  The  decisions  most  freely 
quoted  since  it  was  rendered,  in  1893,  and  chiefly  relied  upon  by  the 
plaintiff  here,  is  that  of  the  United  States  circuit  court  of  appeals 
for  the  sixth  circuit  in  the  case  of  Post  Publishing  Company  v.  Hal- 
lam,  16  U.  S.  App.  613,  8  C.  C.  A.  201,  59  Fed.  530.  Counsel  in  the 
case  had  argued  from  the  duty  of  newspapers  to  keep  the  public  in- 
formed concerning  those  who  are  seeking  their  suffrages  and  con- 
fidence, and  had  asked  if  it  were  possible  that  the  privilege  allowed 
in  discussing  the  character  of  public  servants  should  be  less  than  that 
which  protects  defamatory  statements  made  concerning  a  private 
servant.  The  opinion  states  this  argument,  and  then  proceeds  as 
follows : 

"The  existence  and  extent  of  privilege  in  communications  is 
determined  by  balancing  the  needs  and  good  of  society  with  the 
right  of  an  individual  to  enjoy  a  good  reputation  when  he  has  done 
nothing  which  ought  to  injure  his  reputation.  The  privilege  should 
always  cease  where  the  sacrifice  of  the  individual  right  becomes  so 
great  that  the  public  good  to  be  derived  from  it  is  outweighed. 
Where  conditional  privilege  is  extended  to  cover  statements  of  dis- 
graceful facts  to  a  master  concerning  a  servant,  or  one  applying  for 
service,  the  privilege  covers  a  bo)ia  fide  statement  on  reasonable 
grounds  to  the  master  only,  and  the  injury  done  to  the  servant's 
reputation  is  with  the  master  only.  This  is  the  extent  of  the  sacri- 
fice which  the  rule  compels  the  servant  to  suffer  in  what  was  thought 
to  be,  when  the  rule  became  law,  a  most  important  interest  of 
society.     But  if  the  privilege  is  to  extend  to  cases  like  that  at  b;  t, 


10/2  COLEMAX    Z\    MAC  CLENNAN. 

then  a  man  who  offers  himself  as  a  candidate  must  submit  uncom- 
plainingly to  the  loss  of  his  reputation,  not  with  one  person  only, 
or  a  small  class  of  persons,  but  with  every  member  of  the  public 
whenever  an  tnitrue  charge  of  disgraceful  conduct  is  made  against 
him,  if  only  his  accuser  honestly  believes  the  charge  upon  reason- 
able grounds.  We  think  that  not  only  is  a  sacrifice  not  required  of 
every  one  who  consents  to  become  a  candidate  for  office,  but  that 
to  sanction  such  a  doctrine  would  do  the  public  more  harm  than 
good. 

"We  are  aware  that  public  officers  and  candidates  for  public 
office  are  often  corrupt  when  it  is  impossible  to  make  legal  proof 
thereof,  and  of  course  it  would  be  well  if  the  public  could  be  in- 
formed in  such  a  case  of  what  lies  hidden  by  concealment  and  per- 
jury from  judicial  investigation.  But  the  danger  that  worthy  and 
honorable  men  may  be  driven  from  politics  and  public  service  by 
allowing  too  great  latitude  in  attacks  upon  their  character,  out- 
weighs any  benefit  that  might  occasionally  accrue  to  the  public  from 
charges  of  corruption  that  are  true  in  fact  but  are  incapable  of  legal 
proof.  The  freedom  of  the  press  is  not  in  danger  from  the  enforce- 
ment of  the  rule  we  uphold.  No  one  reading  the  newspaper  of  the 
present  day  can  be  impressed  with  the  idea  that  statements  of  fact 
concerning  public  men  and  charges  against  them  are  unduly  guarded 
or  restricted,  and  yet  the  rule  complained  of  is  the  law  in  England." 
(Page  652.) 

Here  the  rule  by  which  privilege  is  to  be  measured  is  correctly 
stated,  as  in  Wason  v.  Walter,  L.  R.  4  Q.  B.  (Eng.)  73 — the  balance 
of  public  good  against  private  hurt.  The  argument  of  counsel  is 
then  answered,  and  the  statement  is  made  that  a  candidate  ought 
not  suffer  a  loss  in  reputation  with  the  whole  public  for  the  public 
good.  That  is  the  question  to  be  decided,  and  not  a  reason  why  it 
should  be  so  decided.  Then  the  sole  reason  for  the  decision  is 
stated — that  honorable  and  worthy  men  will  be  driven  from  politics. 
Then  the  consequences  of  the  decision  are  commented  upon :  Free- 
dom of  the  press  will  not  be  endangered — an  assertion,  as  shown  by 
the  manner  in  which  public  men  are  handled  by  the  press  at  the 
present  time — an  appeal  to  experience  for  proof. 

The  single  reason  upon  which  the  Hallam  decision  is  based  is 
also  in  the  nature  of  a  prediction,  and  is  not  new.  It  was  advanced 
in  this  country  in  1808,  by  Mr.  Chief  Justice  Parsons  (Commoii- 
zvealth  v.  Clap,  4  Mass,  163),^  and  by  Chancellor  Walworth  in  1829, 
in  the  case  of  King  v.  Root,  4  Wend,  (N.  Y.)  114. 

The  Hallam  case  quotes  the  Supreme  Court  of  Ohio  in  opposi- 
tion to  the  liberal  doctrine,  as  follows  : 

"We  do  not  think  the  doctrine  either  sound  or  wholesome.  In  our 
opinion,  a  person  who  enters  upon  a  public  office,  or  becomes  a  can- 
didate for  one,  no  more  surrenders  to  the  public  his  private  charac- 
ter than  he  does  his  private  property.  Remedy  by  due  course  of  law, 
for  injury  to  each,  is  secured  by  the  same  constitutional  guaranty 


But  see  Commonwealth  v.  Wardwell,  136  Mass.  164  (1883). 


I 


COLEMAN    V.    MAC  LENNAN,  IO73 

and  the  one  is  no  less  inviolate  than  the  other.  To  hold  otherwise 
would,  in  our  judgment,  drive  reputable  men  from  public  positions, 
and  fill  their  place  with  others  having  no  regard  for  their  reputa- 
tion, and  thus  defeat  the  object  of  the  rule  contended  for  and  over- 
turn the  reason  upon  which  it  is  sought  to  sustain  it."  {The  Post 
PiihUshlncj  Company  v.  Moloney,  50  Ohio  St.  71,  89,  33  N.  E.  921.) 
Manifestly  a  candidate  must  surrender  to  public  scrutiny  and 
discussion  so  much  of  his  private  character  as  affects  his  fitness  for 
office,  and  the  liberal  rule  requires  no  more.^  But  in  measuring  the 
extent  of  a  candidate's  profert  of  character  it  should  always  be  re- 
membered that  the  people  have  good  authority  for  believing  that 
grapes  do  not  grow  on  thorns  nor  figs  on  thistles.  The  other  argu- 
ments furnished  by  the  Ohio  quotation  have  already  been  con- 
sidered.   The  Hallam  case  contains  nothing  further  worthy  of  note.^ 

"  See  accord,  Cockburn,  C.  J.,  in  Seymour  v.  Biitterworth,  3  F.  &  F.  372 
(1862)  ;  President  Robertson  in  Brtice  v.  Leisk,  19  Rettie  482  (Scottish  Ct.  of 
Sess.  1892);  Cooley,  Constitutional  Limitations,  440;  Van  Vechten  Veeder, 
Esq.,  Freedom  of  Public  Discussion,  2Z  Harv.  L.  R.  413  (1910),  pp.  429-431 
compare  Commonwealth  v.  Wardwell,  infra.  Note  3,  and  Wood  v.  Boyle,  1/7 
Pa.  St.  620  (1896)  ;  Broadbcnt  v.  Small,  2  Vict.  L.  R.  Law  121  (1876). 

^Accord:  George  v.  Goddard,  2  F.  &  F.  689  (1861)  ;  Wisdom  v.  Brozvn, 
IT  L.  R.  412  (1885)  ;  but  see  Harwood  v.  Astley,  1  B.  &  P.  N.  R.  47  (1804)  ; 
Bruce  v.  Leisk,  19  Rettie  482  (Scottish  Ct.  of  Sess.  1892)  ;  Burke  v.  Mas- 
carich,  81  Cal.  302  (1889),  semble;  Mott  v.  Dawson,  46  Iowa  533  (1877); 
Bays  V.  Hunt,  60  Iowa  251  (1882)  ;  Briggs  v.  Garrett,  111  Pa.  St.  404  (1886)  ; 
Ross  V.  Ward,  14  S.  Dak.  240  (1901),  all  cases  of  private  communications  be- 
tween voters  as  to  candidates  for  office  are  made  at  meetings  to  consider  the 
fitness  of  such  candidates;  Myers  v.  Longstaff,  14  S.  Dak.  98  (1900)  ;  Boucher 
V  Clark  Publishing  Co.,  14  S.  Dak.  72  (1900)  ;  Marks  v.  Baker,  28  Minn.  162 
(1881)  ;  State  v.  Ford,  82  Minn.  452  (1901),  semble;  Express  Printing  Co.  v. 
Copcland,  64  Tex.  354  (1885),  but  see  Forke  v.  Homann,  14  Tex.  Civ.  App. 
670  (1896),  similar  statements  published  in  newspapers.  In  Sweeney  v_ 
Baker,  13  W.  Va.  158  (1878),  a  distinction  is  drawn  between  allegations  of 
mental  or  physical  unfitness  for  the  office,  which  are  said  to  be  absolutely 
privileged  and  attacks  on  the  candidate's  moral  character  which  can  only  be 
justified  by  proof  of  their  truth. 

In  most  of  the  American  cases  it  is  held  that  the  statements  must  not 
only  be  published  in  good  faith  for  the  guidance  of  voters  but  there  must  be 
reasonable  grounds  to  believe  them  true  and  statements  based  on  mere  gossip 
or  rumor  are  not  privileged,  Burke  v.  Mascarich,  81  Cal.  302  (1889)  ;  State  v. 
Ford,  82  Minn.  452  (1901),  compare  Briggs  v.  Garrett,  111  Pa.  St.  404 
(1886),  contra,  Bays  v.  Hxmt,  60  Iowa  251  (1882). 

Statements  made  in  town  meetings  by  officers  thereof  or  by  taxpayers 
in  regard  to  the  conduct  of  the  town  affairs  are  privileged,  Bradley  v.  Heath, 
12  Pick  163  (Mass.  1831);  Smith  v.  Higgins,  16  Gray  251  (Mass.  1860); 
Bradford  v.  Clark,  90  Maine  298  (1897),  but  see  Dodds  v.  Henry,  9  Mass. 
262   (1812).  „    , 

Contra:  Jarman  V.  Rea,  137  Cal.  339  (1902);  Dauphiny  v.  Buhne,  153 
Cal.  757  (1908);  Jones,  Varnum  &  Co.  v.  Townsend,  21  Fla.  431  (1885), 
•semble-  Rearick  v.  Wilcox,  81  111.  77  (1876)  ;  Aldrich  v.  Press  Printing  Co., 
9  Minn.  133  (1864);  Branson  v.  Bruce,  59  Mich.  467  (1886);  Wheaton  v. 
Beccher,  66  Mich.  307  (1887),  where,  however,  the  plaintifif  was  publiclv  a 
candidate  for  an  appointive  office,  (see  Hunt  v.  Bennett,  19  N.  Y.  173  (  18d9)  ; 
though  if  the  object  be  to  inform  the  electors,  "it  must  reduce  the  damages 
to  a  minimum,"  Bailcv  v.  Kalamazoo  Pub.  Co.,  40  Mich.  251  (1879):  but 
see  Sherwood,  J.  in  Peoples  v.  Detroit  Post,  etc..  54  Mich.  457  (^885)  ; 
Smith  v.  Burrus,  106  Mo.  94  (1891)  ;  Lewis  v.  Few,  5  Johns.  1  (N.  Y.  ISO'))  ; 
Upton  v.  Hume,  24  Ore.  420  (1893).     In  Coffin  v.  Brown,  94  Md.  190  (1901), 


I074  HEMMEXS   t'.    IIALSTEAD. 

(c)   Communications  made  for  the  protection  of  others. 


1.    Where  a  relation  exists  making  it  the  maker's  duty  to  protect 

the  recipient. 


HEMMEXS  V.  HALSTEAD. 
Court  of  Appeals  State  of  Neiv  York,  1893.     138  Xew  York  Appeal  Rep.  517. 

Action  of  slander  for  statements  made  by  the  defendant,  who 
was  principal  of  the  Institution  for  Deaf  Mutes  at  Rome  (N.  Y.), 
that  the  plaintiff,  the  superintendent  of  the  sewing  department 
Avhose  duty  as  such  was  to  superintend  the  making  of  clothing 
for  the  children  and  instructing  a  class  in  sewing,  was  the  author  of 
an  obscene  anonymous  letter  received  by  the  defendant's  wife. 
These  statements  were  made  to  the  president  of  the  board  of  trus- 
tees, in  the  course  of  a  consultation  with  him  in  regard  to  the  matter. 
The  trial  court  directed  a  verdict  for  the  defendant  and  entered 
a  judgment  thereon  and  denied  a  motion  for  a  new  trial.  This  ap- 
peal is  taken  from  the  judgment  of  the  general  term  of  the  Supreme 
Court  of  the  4th  Judicial  Department  aiifirming  the  action  of  the 
trial  court. 

O'Brien,  J.  The  court  held  that  the  defense  of  privilege,  con- 
tained in  the  answer,  was  established  and  that  there  was  no  question 
for  the  jury.  The  General  Term  has  repeatedly  reversed  judgments 
in  the  plaintiff's  favor  (24  Hun,  395;  36  Hun,  149;  13  State  Rep. 
211),  and  has  finally  affirmed  the  judgment  entered  upon  the  verdict 

it  was  held  that  a  letter  to  a  democratic  campaign  committee  criticizing 
the  republican  candidate  for  governor  because  of  his  appointment  of  the 
plaintifif,  who  was  accused  of  election  frauds,  as  election  supervisor,  was 
not  privileged. 

Many  courts  allow  a  wide  latitude  in  publishing  to  the  public  the 
official  misconducts  of  public  officers,  O'Rourke  v.  Lewiston  Daily  Sun 
Pub.  Co.,  89  Maine  310  (1896):  Evening  Post  v.  Richardson,  113  Ky.  641 
(1902)  ;  Neeb  v.  Hope,  111  Pa.  St.  145  (1885)  ;  Ferber  v.  Ga::ette  &  Bulletin 
Pub.  Co.,  212  Pa.  St.  367  (1905).  or  the  misconduct  of  public  affairs  if 
published  for  the  purpose  of  inducing  citizens  to  use  their  influence  to 
have  the  abuse  remedied.  Palmer  v.  Concord.  48  N.  H.  211  (1868),  and  see 
Crane  v.  Waters,  10  Fed.  619  (1882),  where  Lowell,  C.  J.  held  that  the 
construction  and  operation  of  a  railroad,  though  not  the  value  of  its  se- 
curities, was  of  sufficient  public  interest  to  warrant  the  publication  of  a 
supposed  scheme  to  wreck  it:  Contra.  People  v.  Fuller,  238  III.  116  (1909); 
Foster  v.  Scripps,  39  ^lich.  376  (1878);  Benton  v.  State,  59  N.  J.  L.  551 
(1896):  Banner  Publishing  Co.  v.  State.  16  Lea  176  (Tenn.  1885);  Hain- 
ilton  v.  Eno.  81  N.  Y.  116  (1880)  ;  Ullrich  v.  New  York  Press  Co.,  23  Misc. 
168  (1898  N.  Y.)  ;  Eviston  y.  Cramer,  57  Wis.  570  (1883).  But  statements 
as  to  an  official's  private  character  which  might  be  privileged  if  made 
while  he  was  a  candidate,  are  not  privileged  if  made  after  his  election, 
Commonwealth  v.   Wardwell,  136  Mass.   164   (1883)._ 

See  on  the  whole  subject,  especially  the  confusion  between  "privilege" 
and  "fair  comment"  often  noticeable  in  cases  discussing  libel  on  public 
officers  and  candidates  for  office.  Van  Vechten  Veeder,  Esq.,  Freedom  of 
Pubhc  Discussion,  23  Harv.  L.  R.  413    (1910). 


I 


LEWIS    V.    CHAPMAN.  lO 


/O 


directed  against  her.  There  can  be  no  doubt  that  the  occasions  upon 
which  the  defendant  is  shown  to  have  made  the  charge  were  privi- 
leged, the  only  question  being  as  to  its  nature  and  extent.  The  defend- 
ant occupied  an  important  and  responsible  office  under  the  authority 
of  the  state,  involving  the  performance  of  duties  of  the  most  varied 
and  delicate  nature,  upon  the  proper  discharge  of  which  the  efficiency 
and  welfare  of  the  institution  largely  depended.  It  was  his  duty  to 
w,atch  and  carefully  observe  the  moral  conduct,  not  only  of  the  chil- 
dren committed  to  his  charge,  but  even  in  a  greater  degree,  the 
teachers,  upon  whose  influence  and  example  so  much,  for  good  or 
evil,  depended.  It  was  essential  that  he  should  be  at  liberty  to  com- 
municate freely  with  the  governing  body  as  to  any  matter  touching 
the  conduct  of  either  the  teachers  or  the  pupils.  This  he  could  not 
do  if  hampered  by  fear  of  penalties  that  could  follow  errors  of 
judgment  or  mistakes,  as  to  who  was  or  was  not  properly  chargeable 
with  improper  conduct. 

If  the  defendant  believed  that  the  plaintiff  was  the  person  who 
sent  the  letter  it  was  his  duty  to  communicate  the  fact  to  the  execu- 
tive committee  and  the  president,  all  of  whom  had  a  corresponding 
duty  with  respect  to  everything  that  concerned  the  welfare  of  the 
institution,  and  his  statements,  under  such  circumstances,  were  con- 
fidential and  privileged  until  the  plaintiff  removed  the  privilege  by 
proof,  on  her  part,  of  actual,  or,  as  it  is  sometimes  called,  express 
malice  or  malice  in  fact.  (Byam  v.  Collins,  iii  N.  Y.  143;  Vander- 
see  V.  McGregor,  12  Wend.  545  ;  Van  IVyck  v.  Aspinzvall,  17  N.  Y. 
190;  Washburn  v.  Cooke,  3  Den.  120;  Hemmens  v.  Nelson,  36  Hun, 
155 ;  Moore  v.  M.  N.  Bank,  supra.y 

Judgment  affirmed. 


LEWIS  AND  HERRICK  v.   CHAPMAN. 

Court  of  Appeals  of  the  State  of  New  York,  1857.     16  New  York,  369. 

The  judge  charged  the  jury  that  this  postscript  was  libelous,  if 
false,  and  that  unless  they  should  find  the  matter  contained  in  it 


^Accord:  Hume  v.  Marshall,  42  J.  P.  136  (Eng.  1877)  ;  Scarll  v.  Dixon, 
4  F.  &  F.  250  (1864)  ;  Sutton  v.  Plumridgc,  16  L.  T.  741  (1867). 

So  a  railway  owes  a  duty  to  communicate  the  reasons  for  discharging 
an  employee  to  other  officials  of  the  same  line,  Bacon  v.  Mich.  Cent.  R.  Co., 
66  Mich.  166  (1887);  Missouri  Pacific  R.  Co.  v.  Richmond,  73  Tex.  568 
(1889),  or  to  officials  of  other  roads.  Missouri  Pacific  R.  Co.  v.  Richmond, 
sentble;  Denver  Public  Warehouse  Co.  v.  Holloway,  34  Colo.  432  (1905), 
communication  by  one  official  of  a  corporation  to  another  directing  the 
discharge  of  an  employee;  Stace  v.  Griffith,  L.  R.  2  P.  C.  420  (1869),  com- 
manding officer  of  a  regiment  at  St.  Helena  reported  to  the  colonial  secre- 
tary of  the  island  the  supposed  drunkenness  at  a  mess  dinner  of  the  plain- 
tiff, a  master  in  the  government  school:  Lally  v.  Emery,  54  Hun  517  (N.  Y. 
1889).  statements  defamatory  of  the  plaintiff  made  to  his  commanding  officer 
by  another  officer;  BeU  v.  Parke,  10  Ir.  C.  L.  R._  279  (1860),  per  Pigqt.  C.  B., 
consultation  with  brother  officers  as  to  propriety  of  reporting  plaintiff  to 
the  commanding  officer;  Livingston  v.  Bradford,  115  Mich.  140  (1897), 
consultation  between  cashier  and  bookkeeper  of  a  bank  about  the  theft  of 


1076  LEWIS   V.    CHAPMAN. 

substantially  true  they  must  find  for  the  plaintiff;  that,  so  far  as 
malice  was  necessary  to  a  right  of  action  in  this  case,  it  was  properly 
inferable,  from  the  falsity  of  the  words  charged  in  the  complaint, 
as  libelous.  The  defendant  excepted  to  this  portion  of  the  charge, 
and  the  jury  rendered  a  verdict  for  the  plaintiff  for  $750.  The 
Supreme  Court,  at  general  term  in  the  seventh  district,  denied  a 
motion  for  a  new  trial,  and  judgment  having  been  perfected  for  the 
plaintiffs,  the  defendant  appealed  to  this  court. 

Selden,  J.  The  inquiry,  then,  is  whether  the  circumstances  in 
this  case  were  such  as  to  bring  the  communication  within  the  class 
termed  privileged. 

Where  both  parties,  i.  e.,  the  party  making  as  well  as  the  party 
receiving,  have  an  interest  in  the  communication,  it  has  never  been 
doubted  that  it  was  privileged.  Where,  however,  the  interest  is  con- 
fined solely  to  the  party  receiving,  the  authorities  are  not  so  decided. 

But  whatever  may  be  the  true  doctrine  on  this  subject,  there  is 
no  doubt  that  where  the  communication  is  made  bona  fide,  in  an- 
swer tD  inquiries  from  one  having  an  interest  in  the  information 
sought,  or  where  the  relation  between  the  parties  by  whom  and  to 
whom  the  communication  is  made  is  such  as  to  render  it  reasonable 
and  proper  that  the  information  should  be  given,  it  will  be  regarded 
as  privileged.  The  precise  question  here  is,  whether  such  a  relation 
existed  in  this  case.  In  Todd  v.  Hazvkins  (8  Carr.  &  Pa.,  88),  it 
was  held  that  a  letter  written  in  good  faith  by  the  defendant  to  his 
mother-in-law,  who  was  about  to  marry  again,  warning  her  of  the 
bad  character  of  her  intended  husband,  was  privileged ;  and  a  like 
decision  was  made  in  the  case  of  Cockayne  v.  Hodgkisson,  (5  Carr. 
&  Pa.,  543),  where  a  tenant  of  a  nobleman  had  written  to  inform 
him  of  his  gamekeeper's  neglect  of  duty.  So,  too,  in  this  state,  in 
the  case  of  IVashhurn  v.  Cooke  (3  Denio,  no),  a  communication 
made  by  an  agent  to  his  principal,  in  regard  to  the  conduct  of  a. 
third  person  connected  with  the  business  of  the  agency,  was  held  to 
be  privileged. 

These  cases  show  that  all  that  is  necessary  to  entitle  such  com- 
munications to  be  regarded  as  privileged  is,  that  the  relation  of  the 
parties  should  be  such  as  to  afford  reasonable  ground  for  suppos- 
ing an  innocent  motive  for  giving  the  information,  and  to  deprive 
the  act  of  an  appearance  of  officious  intermeddling  with  the  affairs 
of  others.  Assuming,  then,  that  the  defendant  made  the  communi- 
cation in  perfect  good  faith,  as  we  must  upon  this  question  of  privi- 
lege, is  it  to  be  regarded  as  an  act  of  officiousness,  on  the  part  of  a 
banker  in  the  country,  intrusted  by  a  mercantile  house  in  New  York 
with  the  collection  of  a  note,  to  inform  such  house  of  the  inability 
of  the  maker  to  meet  the  note  at  maturity?  It  would  seem  that  if 
the  relation  of  a  son-in-law  to  his  mother-in-law,  of  a  tenant  to  his 
landlord,  and  of  an  ordinary  agent  to  his  principal,  are  sufficient,  as 


bank  funds,  compare  Bransfetter  v.  Dorrough,  81  Tnd.  527  (1882"),  where 
statements  made  in  consulting  friend,  as  to  the  propriety  of  letting  the  plain- 
tiff know  what  was  being  said  about  him,  were  held  not  privileged. 


LEWIS   V.    CHAPMAN.  IO77 

in  the  cases  just  cited,  to  cause  the  information  to  be  considered  as 
privileged,  that  existing  in  this  case  must  be  equally  so.  It  is  a  mat- 
ter of  the  utmost  interest  to  merchants  in  the  city  to  be  able  to  judge 
of  the  responsibility  of  their  customers  in  the  country ;  and  even  if 
they  have  no  right  to  expect  information  on  the  subject  from  those 
whom  they  employ  to  collect  their  paper,  yet  the  giving  of  such  in- 
formation by  the  person  employed,  where,  as  in  this  case,  it  relates 
to  the  very  business  with  which  he  is  intrusted,  can  scarcely  be  con- 
sidered as  officious,  or  more  than  an  act  of  just  reciprocity. 

The  communication,  therefore,  charged  in  this  case  as  libelous, 
must  be  regarded  as  privileged.  The  defendant  is  nevertheless 
liable  if  there  was  any  want  of  good  faith  in  making  it;  but  that 
question  must  be  passed  upon  by  the  jury,  and  there  must  be  a  new 
trial  for  that  purpose.^ 

*So,  though  no  Utigation  is  actually  going  on,  a  solicitor  may  give  his 
client  any  information  of  apparent  value  to  him,  Browne  v.  Dunne,  The  Re- 
ports, Vol.  6,  p.  67  (H.  L.  1893);  Davis  v.  Reeves,  5  Ir.  C.  L.  79  (1855). 
and  may  inform  the  next  friend  of  his  minor  client  of  the  latter's  conduct 
prejudicial  to  his  interests  in  the  litigation,  Wright  v.  Woodgate,  2  C  M.  & 
R.  573.(1835).  So  a  physician  may  discuss  with  a  patient  the  professional 
character  of  the  druggist  who  puts  up  his  prescriptions,  Cameron  v.  Cock- 
ran,  2  Marv.  166  (Del.  1895),  see  Humphreys  v.  Stilwell,  2  F.  &  F.  590 
(1861),  and  may  state  his  professional  opinion  as  to  his  patient's  condition 
to  her,  even  in  the  presence  of  her  friends  asked  by  her  to  be  present, 
Brice  v.  Curtis,  38  D.  C.  App.  304  (1912),  though  of  course  he  is  not  priv- 
ileged to  discuss  his  patients'  ailments  with  others. 

So  when  the  plaintiff  is  in  the  employment  of  the  defendant  or  is  per- 
forming a  contract  with  him,  he  may  give_  information  to  the  plaintiff's 
surety,  as  to  any  conduct  of  the  plaintiff  prejudicial  to  the  surety's  interest 
as  such,  Diinman  v.  Bigg,  1  Camb.  269  note  (1808)  ;  Sunley  v.  Metropolitan 
Life  Ins.  Co.,  132  Iowa  123  (1906)  ;  and  see  IVard  v.  IVard,  47  W.  Va.  766 
(1900),  statements  by  surety  to  creditor,  and  Rothhoh  v.  Dunkle,  53  N.  J. 
L.  438  (1891).  In  Schulze  v.  Jalonick,  18  Tex.  Civ.  App.  296  (1898),  an 
insurance  agent  made  ratings  of  all  the  property  in  the  neighborhood  for  the 
information  of  his  companies,  in  them  he  discredited  the  plaintiff's  prem- 
ises, which  were  not  insured,  as  being  used  for  the  illegal  sale  of  liquor, 
the  transmissions  of  these  ratings  to  his  principals  was  held  privileged. 

Where  the  defendant,  who  has  given  the  plaintiff  a  letter  of  recom- 
mendation, or  otherwise  so  acted  as  to  hold  him  out  as  trustworthy,  hon- 
estly believes  that  he  had  discovered  facts  which  make  such  recommenda- 
tion misleading,  it  is  held  to  be  his  moral  duty  and  legal  right  to  communi- 
cate to  any  one  who  has  employed  or  trusted  the  plaintiff  in  reliance  on  it, 
Di.xon  v.  Parsons,  1  F.  &  F.  24  (1858);  Fowlcs  v.  Boiven,  30  N.  Y.  20 
(1864);  Buttenvorth  v.  Conrozv,  1  Marv.  361  (Del.  1895),  and  see  Fahr  v. 
Hayes,  50  N.  J.  L.  275   (1888). 

An  employer  is  in  duty  bound  to  tell  a  servant  the  reason  for  his  dis- 
charge, Taylor  v.  Hazvkins,  16  Q.  B.  308  (1851)  ;  R.  v.  Perry,  15  Cox  C.  C. 
169  ( 1883)  ;  and  if  the  offense  was  believed  to  have  been  committed  by 
two  jointly,  he  mav  tell  each  of  it,  though  it  necessarily  involves  the  other, 
Manhy  v.  Witt,  Easimead  v.  Witt,  18  C.  B.  544  (1856),  but  see  Moore  v. 
Manufacturers  Xafl.  Bank,  123  X.  Y.  420  (1890),  contra,  O'Brien,  J.,  dis- 
senting. 

An  employer  of  minor  or  female  servants  owes  their  parents,  or  those 
standing  to  them  in  loco  parentis,  the  duty  of  acquainting  them  with  such 
servant's  misconduct,  whether  it  leads  to  dismissal  or  not,  .tames  V.  Jolly, 
cited  in  Odger's  Libel  and  Slander,  '4th  ed.,  p.  286;  Aberdcin  v.  Macleay, 
9  Times  L.  R.  539  (1893) ;  Gorst  v.  Barr,  13  Ont.  644  (1887)  ;  Livingston  v. 
Bradford,  115  Mich.  140  (1897)  ;  but  not  it  seems  to  inform  a  wife  of  the 


1078  MAC  INTOSH    V.    DUN. 


MACINTOSH  V.  DUN. 

Judicial  Committee  of  the  Privy  Council.  Hottse  of  Lords,  1908. 
1908  Law  Reports,  Appeal  Cases,  390. 

Lord  Macnaghtex.  This  is  an  appeal  from  the  decision  of 
the  High  Court  of  Australia  pronounced  on  cross-appeals  from  two 
orders  of  the  Full  Court  of  New  South  Wales. 

The  action  was  an  action  for  libel.  It  was  tried  before  Cohen 
J.  and  a  jury.  The  plaintiffs  obtained  a  verdict  for  iSoo.  The  Full 
Court  set  the  verdict  aside,  but  directed  a  new  trial.  The  High 
Court  entered  judgment  for  the  defendants. 

The  question,  and  the  only  question  on  the  present  appeal,  is 
whether  the  occasion  on  which  the  libels  were  published  was  or  was 
not  a  privileged  occasion. 

The  plaintiffs  are  wholesale  and  retail  ironmongers  in  Sydney. 
The  defendants  (as  their  acting  manager  in  Sydney  stated  in  an 
affidavit  filed  in  the  action)  carry  on  the  business  of  a  trade  pro- 
tective society  "in  almost  all  parts  of  the  civilized  world"  under  the 
name  of  "The  Mercantile  Agency."  That  business,  as  the  acting 
manager  explained,  "consists  in  obtaining  information  with  refer- 
ence to  the  commercial  standing  and  position  of  persons"  in  the 
State  of  New  South  Wales  "and  elsewhere  and  in  communicating 
such  information  confidentially  to  subscribers  to  the  agency  in  re- 
sponse to  specific  and  confidential  inquiry  on  their  part."^ 

(He  then  quotes  the  oft-quoted  passage  from  the  opinion  of 
Parke,  B.,  in  Toogood  v.  Spyring,  i  C.  M.  &  R.  181,  at  p.  193.") 

That  passage,  which,  as  Lindley  L.  J.  observes,^  is  frequently 
cited,  and  "always  with  approval,"  not  only  defines  the  occasion  that 
protects  a  communication  otherwise  actionable,  but  enunciates  the 

cause  of  her  husband's  dismissal  from  his  employment.  Jones  v.  Williams, 
1  Times  L.  R.  572  (1885),  but  compare  Wells  v.  'Lindop,  15  Ont.  App.  695 
(1888). 

^  He   stated   further  that  all   requests   for    information   directed   to   the 
agency  by  their  subscribers  are  in  the  following  form : 

"Subscriber's  Ticket. 
"The  Mercantile  Agency. 
"R.  G.  Dun  and  Co. 
"Established  1841. 
"Give  us  in  confidence  and  for  our  exclusive  use  and  benefit  in  our  busi- 
ness, viz.,  that  of  aiding  us  to  determine  the  propriety  of  giving  credit,  what- 
ever information  you  have,  respecting  the  standing,  responsibility,  etc.,  of — 

"Name    

"Business    

"Town    

"Street  Address  •  •  • 

"State    

"Subscribers  to  sign  the  above  themselves. 

"Sydney,  "Subscriber, 

"190..  per 

"No " 

"  This  passage  is  quoted  in  the  opinion  in  Gilbert  v.  Gassctt,  ante. 
^Stuart  V.  Bell,  L.  R.  1891,  2  Q.  B.  341,  p.  346. 


MAC  INTOSII    Z'.   DUN.  lO/Q 

principle  on  which  the  protection  is  founded.  The  underlying  prin- 
ciple is  "the  common  convenience  and  welfare  of  society" — not  the 
convenience  of  individuals  or  the  convenience  of  a  class,  but,  to  use 
the  words  of  Erie  C.  J.  in  Whiteley  v.  Adams,  15  C.  B.  (N.  S.)  392, 
at  p.  418,  "the  general  interest  of  society."* 

Communications  injurious  to  the  character  of  another  may  be 
made  in  answer  to  inquiry  or  may  be  volunteered.  If  the  communi- 
cation be  made  in  the  legitimate  defence  of  a  person's  own  interest, 
or  plainly  under  a  sense  of  duty  such  as  would  be  "recognized  by 
English  people  of  ordinary  intelligence  and  moral  principle"  to  bor- 
row again  the  language  of  Lindley  L.  J.,^  it  cannot  matter  whether 
it  is  volunteered  or  brought  out  in  answer  to  an  inquiry.  But  in 
cases  which  are  near  the  line,  and  in  cases  which  may  give  rise  to 
a  difference  of  opinion,  the  circumstance  that  the  information  is 
volunteered  is  an  element  for  consideration  certainly  not  without 
some  importance. 

If  in  defence,  therefore,  to  the  views  of  the  learned  judges  of 
the  High  Court,  the  first  question  would  seem  to  be,  under  which 
category  does  the  communication  now  in  question  properly  fall? 
No  doubt  there  was  a  specific  request.  In  response  to  that  request 
the  communication  was  made.  That  much  is  clear.  But  it  is  equally 
clear  that  the  defendants  set  themselves  in  motion  and  formulated 
and  invited  the  request  in  answer  to  which  the  information  com- 
plained of  was  produced.  The  defendants,  in  fact,  hold  themselves 
out  as  collectors  of  information  about  other  people  which  they  are 
ready  to  sell  to  their  customers.  It  cannot  matter  whether  the  cus- 
tomer deals  across  the  counter,  so  to  speak,  just  as  and  when  the 
occasion  arises,  or  whether  he  enjoys  the  privilege  of  being  enrolled 
as  a  subscriber  and  pays  the  fee  in  advance. 

If,  then,  the  proprietors  of  the  Alercantile  Agency  are  to  be 
regarded  as  volunteers  in  supplying  the  information  which  they  pro- 
fess to  have  at  their  disposal,  what  is  their  motive?  Is  it  a  sense 
of  duty?  Certainly  not.  It  is  a  matter  of  business  with  them. 
Their  motive  is  self-interest.  They  carry  on  their  trade,  just  as 
other  traders  do,  in  the  hope  and  expectation  of  making  a  profit. 

Then  comes  the  real  question :  Is  it  in  the  interest  of  the  com- 
munity, is  it  for  the  welfare  of  society,  that  the  protection  which 
the  law  throws  around  communications  made  in  legitimate  self- 
defence,  or  from  a  bona  fide  sense  of  duty,  should  be  extended  to 


*  In  Elkington  v.  London  Association  for  the  Protection  of  Trade,  28  T. 
L.  R.  117  (1911),  Darling,  J.,  understanding  this  to  mean  tliat  the  information 
must  be  "pubHshed  for  the  benefit  of  society  at  large"  and  not  for  the  benefit 
or  convenience  of  individuals  or  "a  limited  class,"  held  that  an  association  of 
traders  issuing  a  report  for  the  information  of  its  members  and  not  for  profit, 
were  not  privileged  to  publish  therein  imputations  on  the  solvency  of  custom- 
ers, accord,  Lord  Alverstone,  C  J.,  in  Greenlands  v.  Wihnhurst,  29  L.  T.  R. 
64  (1912),  affirmed  in  the  Court  of  Appeals,  L.  R.  1913.  3  K.  B.  507,  Bray.  J., 
dissenting;  contra,  Barr  v.  Musselburgh  Merchants'  Association,  1912  Session 
Cases  174  (Scotland  Ct.  of  Sessions),  and  Howe  v.  Lees,  11  Commonwealth 
L.  R.  361  (Australia  1910). 

=^L.  R.  1891,2  Q.  B.,  p.  350 


I080  MAC  IXTOSn    V.    DUN". 

communications  made  from  motives  of  self-interest  by  persons  who 
trade  for  profit  in  the  characters  of  other  people?  The  trade  is  a 
peculiar  one ;  still  there  seems  to  be  much  competition  for  it ;  and  in 
this  trade,  as  in  most  others,  success  will  attend  the  exertions  of 
those  wdio  give  the  best  value  for  money  and  probe  most  thoroughly 
the  matter  placed  in  their  hands.  There  is  no  reason  to  suppose 
that  the  defendants  generally  have  acted  otherwise  than  cautiously 
and  discreetly.  But  information  such  as  that  which  they  offer  for 
sale  may  be  obtained  in  many  ways,  not  all  of  them  deserving  of 
commendation.  It  may  be  extorted  from  the  person  whose  charac- 
ter is  in  question  through  fear  of  misrepresentation  or  misconstruc- 
tion if  he  remains  silent.  It  may  be  gathered  from  gossip.  It  may 
be  picked  up  from  discharged  servants.  It  may  be  betrayed  by  dis- 
loyal employees.  It  is  only  right  that  those  who  engage  in  such  a 
business,  touching  so  closely  very  dangerous  ground,  should  take 
the  consequences  if  they  overstep  the  law. 

However  convenient  it  may  be  to  a  trader  to  know  all  the  se- 
crets of  his  neighbor's  position,  his  "standing,"  his  "responsibility," 
and  whatever  else  may  be  comprehended  under  the  expression  "et 
cetera,"  yet,  even  so,  accuracy  of  information  may  be  bought  too 
dearly — at  least  for  the  good  of  society  in  general. 

It  is  admitted  that  in  this  country  there  is  no  authority  directly 
in  point.  There  are  direct  authorities  in  the  United  States  in  favor 
of  the  conclusion  of  which  the  High  Court  has  arrived.  American 
authorities  are,  no  doubt,  entitled  to  the  highest  respect.  But  this  is 
a  question  which  must  be  decided  by  English  law.  In  the  dearth 
of  English  authority  it  seems  to  their  Lordships  that  recourse  must 
be  had  to  the  principle  on  which  the  law  in  England  on  this  subject 
is  founded.  With  the  utmost  deference  to  the  learned  judges  of 
the  High  Court,  their  Lordships  are  of  opinion  that  the  decision 
under  appeal  is  not  in  accordance  with  that  principle.^ 


°  Accord:  Johnson  v.  Bradstreet  Co.,  77  Ga.  172  (1886),  "If  one  makes  it 
his  business  to  pry  into  the  affairs  of  another,  in  order  to  coin  money  for  his 
investigations  and  information,  he  must  see  to  it  that  he  communicate  nothing 
that  is  false";  and  see  Beardsley  v.  Tap  pan,  5  Blatchf.  497  \\J.  S.  1867),  con- 
fining the  privilege  of  making  such  communication  to  individuals,  and  denying 
it  to  a  society,  association,  or  a  corporation. 

Contra:  Erber  v.  Dun,  4  McCrary  (U.  S.)  160,  12  Fed.  526  (1882)  ;  Pol- 
lasky  v.  Minchener,  81  Mich.  280  (1890)  ;  King  v.  Patterson,  49  N.  J.  L.  417 
(1887)  ;  Ormsby  v.  Douglas,  37  N.  Y.  477  (1868)  ;  Commonwealth  v.  Staccv. 
8  Phila.  617  (Pa.  1871)  ;  Bradstreet  Co.  v.  Gill,  72  Tex.  115  (1888)  ;  State  ex 
rel.  Lanning  v.  Lonsdale,  48  Wis.  348  (1880)  ;  Todd  v.  Dun,  15  Ont.  App.  85 
(1887)  ;  Fitssimons  v.  Duncan,  Kemp  &  Co.,  L.  R.  1908,  2  Jr.  483  (semble). 
The  same  privilege  attaches  to  the  communications  by  the  correspondents  of 
such  agencies  to  them  of  information  from  which  their  reports  are  made  up, 
State  ex  rel.  Lanning  v.  Lonsdale,  supra;  contra,  Sherivood  v.  Gilbert,  2  Alb. 
L.  J.  323  (N.  Y.  1870).  See  on  the  whole  subject  the  learned  and  exhaustive 
essay  of  Hon.  Jeremiah  Smith,  14  Col.  L.  R.  187-296  (1913)  and  note  in  57 
U.  of  Pa.  L.  Rev.  179. 


RUDE   V.    NASS.  I081 

2.    Where  no  relation  exists  making  it  peculiarly  the  duty  of  the 
maker  to  protect  the  recipient's  interests. 


(a)   Communication  made  in  answer  to  inquiries. 


RUDE  V.  NASS. 

Supreme    Court   of    Wisconsin,    1891.      79    Wisconsin    Reports,   321. 

The  father  of  a  girl,  who  had  caused  the  plaintiff's  arrest  for 
her  seduction,  requested  a  friend  to  write  to  the  defendant,  pastor 
of  a  church  with  which  the  plaintiff  had  previously  been  connected. 
The  defendant  in  answer,  wrote  the  letter  in  question,  which  was 
admittedly  libelous. 

Cassoday,  J.  Counsel  contend,  in  effect,  that,  assuming,  as  we 
must,  upon  the  verdict,  that  the  defendant  wrote  and  sent  the  letter 
believing  it  to  be  true,  in  good  faith,  and  without  malice,  yet  the 
circumstances  were  not  such  as  to  make  it  privileged.  They  contend 
that,  in  order  to  be  privileged,  the  defendant  should  have  had  an 
interest  in  the  subject-matter  of  the  letter,  or  some  duty  to  perform 
in  reference  thereto,  and  also  that  the  person  to  whom  it  was  ad- 
dressed should  have  had  a  corresponding  interest  or  duty ;  and  they 
cite  decisions  of  learned  courts  in  support  of  such  contention.  Some 
of  these  decisions,  however,  are  inconsistent  with  others  made  by 
the  same  courts. 

In  Noonan  v.  Orton,  32  Wis  112,  Dixon,  C.  J.,  approvingly 
quotes  the  language  of  Shaw,  C.  J.,  as  follows :  ''Where  woj^ls  im- 
puting misconduct  to  another  are  spoken  by  one  having  a  duty  to 
perform,  and  the  words  are  spoken  in  good  faith,  and  in  the  belief 
that  it  comes  within  the  discharge  o_f  that  duty,  or  where  they  are 
spoken  in  good  faith  to  those  who  have  an  interest  in  the  commu- 
nication, and  a  right  to  kjioS^and  act  upon  the  facts  stated,  no  pre- 
sumption of  malice  arises  ^om  the  speaking  of  the  words,  and 
therefore  no  action  can_be  maintained  in  such  cases  without  proof 
of  express  malice."  Bradley  v.  Heath,  12  Pick.  164.  These  cases 
were  cited  approvingly  in  M.  P.  Ry.  Co.  v.  Richmond,  y^  Tex.  575. 
This  alternative  statement  only  makes  it  necessary  that  there  be 
an  interest  or  duty  on  the  part  of  the  person  making  the  com- 
munication, or  on  the  part  of  the  person  to  whom  it  is  made,  in 
order  that  it  is  to  be  conditionally  privileged.  There  are  certainly 
many  cases  holding  that  such  communication  may  be  conditionally 
privileged  if  made  to  one  having  an  interest  in  and  a  right  to  know 
and  act  upon  the  facts  therein  stated.  IVcathcrston  V.  Haivkins,  i 
Term.  Rep.  no;  Tzvogood  v.  Spyring,  i  Cromp.  i\I.  &  R.  181 ;  Kine 
V.  Sezvell,  3  Mees.  &  W.  297 ;  Robshaw  v.  Smith,  38  Law  T.  (N.  S.) 
423;  Waller  v.  Lock,  45  Law  T.  (N.  S.)  242;  Tompson  v.  Dash- 
wooa,  L.  R.  II  O.  B.  Div.  43 ;  Ativill  v.  Mackintosh,  120  Mass.  177 ; 


I082 


RUDE   V.    NASS. 


Sundcrlin  v.  Bradstrect,  46  N.  Y.  191 ;  Bacon  v.  M.  C.  R.  Co.,  66 
Mich.  166. 

Thus  in  Robshazv  V.  Smith,  supra,  it  was  said  by  Grove,  J., 
speaking  for  the  court :   "The  defendant  did  not  act  as  a  volunteer, 
but  was  appHed  to  for  information.     When  apphed  to,  he  did  give 
such  information  as  he  possessed.     He  might  have  refused  to  give 
that  information.     He  had  no  legal  duty  cast  upon  him  to  give  any 
opinion.    But  he  was  entitled  to  give  his  opinion  when  asked,  and, 
a  fortiori,  as  it  seems  to  me,  to  show  any  letters  he  had  received 
bearing  on  the  subject.    .    .    .    Every  one  owes  it  as  a  duty  to  his 
fellow-men  to  state  what  he  knows  about  a  person,  when  inquiry  is 
made ;  otherwise  no  one  would  be  able  to  discern  honest  men  from 
dishonest  men.     It  is  highly  desirable,  therefore,  that  a  privilege  of 
this  sort  should  be  maintained."    Lindley,  J.,  was  of  the  same  opin- 
ion, and  said:   *T  think  it  would  be  a  lamentable  state  of  the  law, 
if,  when  a  person  asks  another  for  information,  that  other  could 
not  give  such  information  as  he  possessed  without  exposing  himself 
to  the  risk  of  an  action."     Upon  a  review  of  the  authorities,  that 
case  and  these  expressions  were  fully  sanctioned  by  Jessel,  M.  R., 
in  Waller  v.  Lock,  supra,  who  went  still  further,  and  said :   "If  the 
answer  is  given  in  the  discharge  of  a  moral  and  social  duty,  or  if  the 
person  who  gives  it  believes  it  to  be  so,^  that  is  enough.     It  need 
■"not  even  be  an  answer  to  an  inquiry,  but  the  communication  may  be 
a  voluntary  one.     The  law  is  concisely  stated  by  Lord  Blackburn. 
.    .    .    thus :  'Where  a  person  is  so  situated  that  it  becomes  right  in 
the  interests  of  society  that  he  should  tell  to  a  third  person  facts, 
IhenTif  he  bona  fide  and  without  malice  does  tell  them,  it  is  a  privi- 
l^ed;  communication.'    It  appears  to  me,  that  if  you  ask  a  question 
"otaperson  whom  you  believe  to  have  the  means  of  knowledge  about 
the  character  of  another  person  with  whom  you  wish  to  have  any 
dealings  whatever,  and  he  answers  bona  fide,  that  is  a  privileged 
communication.    I  might  illustrate  this  by  the  instances  of  inquiries 
being  made  of  a  friend  or  a  neighbor  about  a  tradesman,  a  doctor, 
jpr  a  solicitor.    Society  could  not  go  on  without  such  inquiries.    The 
A^'hole  doctrine  of  privilege  must  rest  upon  the  interest  and  the 
necessities  of  society.     If  every  one  was  open  to  an  actionof  libel 
lor  slander  for  the  answers  he  might  make  to  such  inquiries,  it  would 
fee  very  injurious  to  the  interests  of  society."    The  eminence  of  that 
late  learned  master  of  the  rolls,  who  thus  expressed  the  opinion  of 
the  court,  and  the  confusion  among  some  of  the  adjudications,  seem 
to  justify  the  lengthy  quotation  made. 

In  view  of  these  authorities,  and  others  which  might  be  cited, 
it  seems  to  us  that  the  father  of  the  girl  who  made  the  complaint 
upon  which  the  plaintiff  had  been  arrested  had  an  interest  in  the 
communication  sent  by  the  defendant,  and  had  the  right  to  know 
and  act  upon  the  facts  therein  stated ;  and  hence,  had  the  letter  been 
written  bv  the  defendant  in  answer  to  inquiries  made  by  the  father 


^  As  to  this  see  Lindley,  L.  J.  in  Stuart  v.  Bell,  1891,  L.  R.  2  Q.  B.  341, 
p.   349,   contra. 


bya:m  z\  COLLINS.  1083 

personally,  it  would  have  been  conditionally  privileged.  The  mere 
fact  that  the  letter  was  written  by  the  defendant  in  answer  to  in- 
quiries made  by  another  for  and  in  behalf  of  the  father  does  not 
take  away  the  privileged  character  of  the  communication.  This  is 
manifest  from  some  of  the  authorities  cited.  We  must  hold  that 
there  was  no  error  in  submitting  the  case  to  the  jury  on  the  theory 
that  the  communication  was  conditionally  privileged.^ 


BYAAI  r.  COLLINS. 
Court  of  Appeals  State  of  Nezv  York,  1888.     Ill  New  York,  143. 

Earl,  J.  There  was,  also,  error  in  the  court  below  as  to  the 
verbal  slanders  alleged  in  the  second  cause  of  action ;  and  what  I 
have  already  said  applies,  in  part,  to  these  slanders. 

^Accord:  Defamatory  statements  made  in  answer  to  inquiries,  as  to 
the  character  of  a  servant  or  employee,  made  by  one  to  whom  the  latter 
has  applied  for  employment,  Edmondson  v.  Stephenson,  BuUer,  N.  P.  8 
(1765);  Wabash  R.  Co.  v.  Young,  162  Ind.  102  (1904);  Posnett  v.  Marble, 
62  Vt.  481  (1889)  ;  or  made  by  one  servant  of  another  in  answer  to  his 
mistress'  questions,  Mead  v.  Hughes,  7  Times  L.  R.  291  (1891),  or  by  third 
parties,  Cockayne  v.  Hodgkisson,  5  C.  &  P.  543  (1833),  or  made  to  landlord 
in  answer  to  his  inquiries  as  to  the  character  of  his  tenants,  Liddle  v. 
Hodges,  IS  N.  Y.  Super.  Ct.  (2  Bosw.)  537  (1858),  or  by  a  physician  report- 
ing to  a  husband  his  belief  that  the  latter's  wife  is  insane,  IVeldon  v. 
W'mslow,  London  Times,  March  14  to  19  (1884),  or  statements  as  to  char- 
acter of  a  girl's  fiance  made  in  answer  to  the  inquiries  by  her  family. 
Bidsson  v.  Hiiard,  106  La.  768  (1901),  or  statements  as  to  the  character  of 
a  minor  child  made  in  answer  to  its  parents'  inquiry,  Long  v.  Peters,  47 
Iowa  239  (1877),  are  privileged. 

So  one  is  privileged  to  answer  questions  put  by  another  in  the  course 
of  his  investigation  of  a  crime  actuallv  or  honestly  believed  to  exist,  per 
Parke  B.,  Kine  v.  Sewell,  3  M.  &  W.  "297    (1838),  p.  302. 

So  when  a  man  on  being  asked  for  his  reason  for  refusing  to  sign  the 
plaintiff's  petition  to  retain  his  position  as  trustee  of  a  charity,  on  being 
pressed  gave  them,  his  answer  was  held  in  Cowles  v.  Potts,  34  L.  J.  Q.  B.  247 
(1865)  to  be  privileged,  compare  Jl'hitelev  v.  Adams,  15  C.  B.  (N.  S.)  392 
(1863). 

So  replies  to  inquiries  as  to  the  solvency  or  respectability  of  a  person 
with  whom  the  inquirer  has  or  is  about  to  have  business  or  professional 
dealings,  Lord  Denman  in  Storey  v.  Challands,  8  C.  &  P.  234  (1837)  ; 
Broinage  v.  Prosser,  1  C.  &  P.  475  (1824)  ;  Robshazv  v.  Smith,  cited  in  the 
principal  case,  in  which  even  the  showing  of  an  anonymous  letter  was  held 
privileged;  Fahr  v.  Hayes,  50  N.  J.  L.  275  (1888)  ;  Howland  v.  Blake  Mfg. 
Co.,  156  Alass.  543  (1892).  For  other  cases,  see  Odgers,  Libel  and  Slander, 
4th  Ed.,  pp.  238  to  242. 

One  specifically  employed  to  obtain  mformation  is  privileged  to  st?te 
the  facts  he  believes  he  has  discovered,  Atzvill  v.  Mackintosh,  120  Mass.  177 
(1876),  agent  employed  by  a  father  to  obtain  information  as  to  the  char- 
acter of  his  daughter's  suitor;  Zuckernian  v.  Sonncnschein,  62  111.  115  (1871  >. 
interpreter  translating  slanderous  words;  Washburn  v.  Cooke,  3  Denio  110 
(N.  Y.  1846),  law  student  employed  by  sheriff  to  ascertain  facts  and  advise 
him  what  course  to  take;  Taylor  v.  Church,  8  N.  Y.  452  (1853),  agent  cm- 
ployed  by  association  of  merchants  to  ascertain  the  credit  of  their  cus- 
tomers, see  Mcintosh  v.  Dun,  post.  But  the  statement  must  be  responsive 
to  the  inquiry,  Southam  v.  Allen,  T.  Raym.  231  (1673),  Hunflev  v.  Ward, 
6  C.  B.  (N.  S.)  514  (1859)  ;  Odger's  Libel  and  Slander,  4th  Ed.;  239. 


1084  BVAM    r.    COLLIXS. 

The  judge  charged  the  jury,  in  substance,  that  the  words,  it 
uttered  under  the  circumstances  testified  to  by  Mrs.  Colhns,  were 
privileged.  She  testified,  in  substance,  that  she  uttered  the  words 
to  Mr.  Cameron  in  confidence,  after  the  most  urgent  soHcitation  on 
liis  part  that  she  should  tell  him  what  she  knew  about  the  plaintiff. 
But  defamatory  words  do  not  become  privileged  merely  because 
uttered  in  the  strictest  confidence  by  one  friend  to  another,  nor  be- 
cause uttered  upon  the  most  urgent  solicitation.  She  was  under  no 
duty  to  utter  them  to  him,  and'  she  had  no  interest  to  subserve  by 
uttering  them.  He  had  no  interest  or  duty  to  hear  the  defamatory 
words,  and  had  no  right  to  demand  that  he  might  hear  them ;  and 
under  such  circumstances  there  is  no  authority  holding  that  any 
privilege  attaches  to  such  communication.^ 

There  was  no  evidence  that  would  authorize  a  jury  to  find  that 
Cameron  sought  the  interview  Avith  j\Irs.  Collins,  as  an  emissary 
from  or  agent  of  the  plaintiff,  or  that  at  the  plaintiff''s  solicitation 
or  instigation  he  obtained  the  slanderous  communications  from  her, 
and  he  did  not  profess  or  assume  to  act  for  him  on  that  occasion. 
He  was  the  mutual  friend  of  the  parties,-  and  seems  to  have  sought 


^Accord:  Carpenter  v.  Willey,  65  Vt.  168  (1892),  a  former  pastor  has 
no  legitimate  interest  in,  nor  right  to  inquire  into  the  chastity  of  a  female 
member  of  his  former  congregation,  so  statements  concerning  her  chastity  are 
not  privileged  though  made  in  answer  to  his  pressing  inquiries.  So.  when 
the  occasion  for  information  is  passed,  so  that  the  recipient's  interest,  or 
the  common  interest  of  both  giver  and  recipient  therein  no  longer  exists, 
the  information  can  neither  be  given  upon  inauiry,  Martin  v.  Strong.  5  A.  & 
E.  535  (1836),  as  explained  in  Kine  v.  Sewe'll,  3  M.  &  W.  297  (1838),  pp. 
3<I3  and  314;  Ritchie  v.  Widdcmcr,  59  N.  J.  L.  290  (1896)— but  compare 
Kersting  v.  White,  107  Mo.  App.  265  (1904),  where  the  defamatory  remarks 
were  volunteered  in  discussing  what  had  taken  place  at  a  church  meeting 
W'here  charges  against  the  plaintiff  had  been  considered  and  dismissed — nor 
volunteered,  5;-oo^^  v.  Blaushard,  1  Cr.  &  M.  779  (1833),  one  stockholder 
discussed  with  another  the  character  of  an  applicant  for  a  position  in  the 
service  of  th^  corporation,  which  had  already  been  filled;  Goslctt  v.  Gar- 
vieiit,  13  Times  L.  R.  391  (1897),  defendant  informed  a  headmaster  that 
the  plaintiff,  formerly  a  teacher  in  his  school,  had  been  seen  drunk  in  the 
street  on  a  Sunday  while  he  was  a  teacher  in  the  school. 

So  while  a  director  may  in  the  board  of  directors  state  his  belief  that 
a  customer  of  a  corporation  is  insolvent  or  perhaps  may  do  so  in  discussing 
the  business  affairs  of  the  corporation,  he  may  not  gossip  with  a  fellow- 
director  in  regard  to  the  solvencv  of  a  mutual  acquaintance,  Sewall  v.  Cat- 
lin,  3  Wend.  291   (X.  Y.  1829). 

^  Alere  benevolent  interest  in  the  person,  who  is  the  subject  of  the 
statements  is  not  enough,  The  Xorfolk  &  Washington  Steamboat  Co.  v. 
Davis,  12  D.  C.  App.  306  (1898),  a  statement  aft'ecting  the  plaintiff's  char- 
acter held  not  privileged  because  made  to  a  man  who  had  taken  an  interest 
in  the  plaintiff's  career  and  had  recommended  him  for  the  position  he  then 
held;  compare  Farquhar  v.  Xeish,  17  Sc.  Sess.  Case's,  4th  Ser.  716  (1890), 
where  a  similar  statement  made  to  a  registry  office,  through  which  the  de- 
fendant had  engaged  the  plaintiff  as  a  servant,  was  held  privileged. 

Nor  does  mere  joint  membership  in  a  religious  organization,  social  or 
business  association,  give  the  members  an  interest  in  the  characters  of  their 
associates  which  makes  a  discussion  thereof  privileged,  York  v.  Johnson, 
116  Mass.  482  (1875);  Lovejoy  v.  Whitcomb,  174  Mass.  586  (1899);  as  to 
the  right  to  discuss  within  the  family  circle  matters  which,  since  they 
touch  the  social,  moral  or  business  interests  of  one  are  of  interest  to  all. 


COXHEAD    V.    RICHARDS.         '  IO85 

the  interview  with  her  either  to  gratify  his  curiosity,  or  to  prevent 
tlie  impending  Htigation  between  the  parties.  But  even  if  he  ob- 
tained the  interview  with  her  at  the  solicitation  of  the  plaintiff,  and 
as  his  friend,  she  could  not  claim  that  her  slanderous  words  uttered 
at  such  interview  were  privileged.* 

The  trial  judge,  therefore,  erred  in  refusing  to  charge  the  jury 
that  there  was  no  question  for  them  as  to  the  second  cause  of  action 
but  one  of  damages. 


(b)   Communication  volunteered  by  the  maker. 


COXHEAD  V.  RICHARDS. 
Court  of  Common  Pleas,  1846.    2  Common  Bench  Reports,  568. 

TiNDAL,  C.  J.  This  was  an  action  upon  the  case  for  the  publi- 
cation of  a  false  and  malicious  libel,  in  the  form  of  a  letter  written 
by  one  John  Cass,  the  first  mate  of  a  ship  called  The  England,  to 
the  defendant ;  the  letter  stating  that  the  plaintiff,  who  was  the  cap- 
tain of  the  ship,  and  then  in  command  of  her,  had  been  in  a  state 
of  constant  drunkenness  during  the  part  of  a  voyage,  whereby  the 
ship  and  crew  had  been  exposed  to  continual  danger:  and  the  pub- 
lication by  the  defendant  was  the  communication  by  him  of  this 
letter  to  the  owner  of  the  ship,  by  reason  whereof, — which  was  the 
special  damage  alleged  in  the  declaration — the  plaintiff  was  dis- 
missed from  the  ship  and  lost  his  employment.^ 

The  defendant  pleaded  not  guilty. 

A  verdict  was  found  for  the  defendant  upon  the  first  issue. 

I  told  the  jury  at  the  trial,  that  the  occasion  and  circumstances 
under  which  the  communication  of  this  letter  took  place,  were  such, 
as  in  my  opinion,  to  furnish  a  legal  excuse  for  making  the  com- 
munication ;  and  that  the  inference  of  malice, — which  the  law,  prima 
facie,  draws  from  the  bare  act  of  publishing  any  statements  false  in 
fact,  containing  matter  to  the  reproach  and  prejudice  of  another, — 
was  thereby  rebutted ;  and  that  the  plaintiff,  to  entitle  himself  to  a 
verdict,  must  show  malice  in  fact :  concluding  by  telling  them  that 
they  should  find  their  verdict  for  the  defendant,  if  they  thought 
the  communication  was  strictly  honest  on  his  part,  and  made  solely 
in  the  execution  of  what  he  believed  to  be  a  duty ;  but,  for  the 
plaintiff,  if  they  thought  the  communication  was  made  from  any 
indirect  motive  whatever,  or  from  any  malice  against  the  plaintiff". 
And  the  only  question  now  before  us,  is,  whether,  upon  the  evi- 
dence given  at  the  trial,  such  direction  was  right. 

There  was  no  evidence  whatever  that  the  defendant  was  actu- 
ated by   any   sinister  motive   in   communicating  the  letter  to   Mr. 

see  McBride  v.  Ledoux,  and  Campbell  v.  Bannster,  cited  in  Note  2  to  Krehs 
V.   Oliz'er,  post. 

^  See  Richardson  v.  Gunby,  ante. 

^  The  other  pleas  were  2nd,  that  the  charge  was  true,  and  3rd,  that  the 
plaintiff  was  not  discharged  in  consequence  of  the  letter — on  both  issues 
the  verdict  was  found  for  the  defendant. 


I086  COXHEAD   Z\    RICHARDS. 

Ward,  the  ship-owner:  on  the  contrary,  all  the  evidence  went  to 
prove  that  what  he  did,  he  did  under  the  full  belief  that  he  was  per- 
forming a  duty,  however  mistaken  he  might  be  as  to  the  existence 
of  such  duty,  or  in  his  mode  of  performing  it.  The  writer  of  the 
letter  was  no  stranger  to  the  defendant :  on  the  contrary,  both  were 
proved  to  have  been  on  terms  of  friendship  with  each  other  for 
some  years ;  and,  from  the  tenor  of  the  letter  itself,  it  must  be  in- 
ferred the  defendant  was  a  person  upon  whose  judgment  the  writer 
of  the  letter  placed  great  reliance,  the  letter  itself  being  written  for 
the  professed  purpose  of  obtaining  his  advice  how  to  act  under  a 
very  pressing  difficulty.  The  letter  was  framed  in  very  artful  terms, 
such  as  were  calculated  to  induce  the  most  wary  and  prudent  man 
(knowing  the  writer)  to  place  reliance  on  the  truth  of  its  details: 
and  there  can  be  no  doubt  but  that  the  defendant  did  in  fact  thor- 
oughly believe  the  contents  to  be  true,  amongst  other  things,  that 
the  ship,  of  which  Mr.  Ward  was  the  owner,  and  the  crew  and  cargo 
on  board  the  same,  had  been  exposed  to  very  imminent  risk,  by  the 
continued  intoxication  of  the  captain,  on  the  voyage  from  the 
French  coast  to  Llanelly,  w^here  the  ship  then  was,  and  that  the 
voyage  to  the  Eastern  Seas,  for  which  the  ship  was  chartered,  would 
be  continually  exposed  to  the  same  hazard,  if  the  vessel  should  con- 
tinue under  his  command.  In  this  state  of  facts,  after  the  letter  had 
been  a  few  days  in  his  hands,  the  defendant  considered  it  to  be  his 
duty  to  communicate  its  contents  to  Mr.  Ward,  whose  interests  were 
so  nearly  concerned  in  the  information ;  not  communicating  it  to  the 
public,  but  to  Mr.  Ward ;  and  not  accompanying  such  disclosure  with 
any  directions  or  advice,  but  merely  putting  him  in  possession  of  the 
facts  stated  in  the  letter,  that  he  might  be  in  a  condition  to  investi- 
gate the  truth,  and  take  such  steps  as  prudence  and  justice  to  the 
parties  concerned  required :  in  making  which  disclosure  he  did  not 
act  hastily  or  unadvisedly,  but  consulted  two  persons  well  qualified 
to  give  good  advice  on  such  an  emergency — the  one,  an  Elder 
Brother  of  the  Trinity  House — the  other,  one  of  the  most  eminent 
ship-owners  in  London :  in  conformity  with  whose  advice  he  gave 
up  the  letter  to  the  owner  of  the  ship.  At  the  same  time,  if  the 
defendant  took  a  course  which  was  not  justifiable  in  point  of  law, 
although  it  proceeded  from  an  error  in  judgment  only,  not  of  inten- 
ijcjor,  still  it  is  undoubtedly  he,  and  not  the  plaintiff,  who  must  suffer 
f£U:>  such  error. 

The  only  question  is,  whether  the  case  does  or  does  not  fall 
within  the  principle,  well  recognized  and  established  in  the  law,  re- 
lating to  privileged  or  confidential  communications;  and,  in  deter- 
mining this  question,  two  points-may,  as  I  conceive,  be  considered 
as  settled — first,  that  if  the  defendant  had  had  any  personal  interest 
in  the  subject-matter  to  which  the  letter  related,  as,  if  he  had  been 
a  part-owner  of  the  shij2j_oi  aii  underwriter  on  the  ship,  or  had  had 
any  property  on  board,  the  communication  of  such  letter  to  Mr. 
Ward  would  have  fallen  clearly  within  the  rule  relating  to  excusable 
publications — and,  se'condly,  that  if  the  danger  disclosed  by  the 
letter,  either  to  the  ship  or  the  cargo,  or  the  ship's  company,  had 


COXIIEAD   r.    RICHARDS.  IO87 

been  so  immediate  as  that  the  disclosure  to  the  shipowner  was  nec- 
essary to  avert  such  danger,  then,  upon  the  ground  of  social  duty, 
by  which  every  man  is  bound  to  his  neighbor,  the  defendant  would 
have  been  not  only  justified  in  making  the  disclosure  but  would  have 
been  bound  to  make  it.  A  man  who  received  a  letter  informing  him' 
that  his  neighbor's  house  would  be  plundered  or  burnt  on  the  night 
following  by  A.  and  B.,  and  which  he  himself  believed,  and  had 
reason  to  believe  to  be  true,  would  be  justified  in  showing  that  letter 
to  the  owner  of  the  house,  though  it  should  turn  out  to  be  a  false 
accusation  of  A.  and  B.  The  question  before  us  appears,  therefore, 
to  be  narrowed  to  the  consideration  of  the  facts  which  bear  upon 
these  two  particular  qualifications  and  restrictions  of  the  general 
principle. 

As  to  the  first,  I  do  not  find  the  rule  of  law  is  so  narrowed  and 
restricted  by  any  authority,  that  a  person  having  information  ma- 
terially affecting  the  interests  of  another,  and  honestly  communi- 
cating it,  in  the  full  belief,  and  with  reasonable  grounds  for  the 
belief  that  it  is  true,  will  not  be  excused,  thovigh  he  has  no  personal 
interest  in  the  subject-matter.  Such  a  restriction  would  surely  oper- 
ate as  a  great  restraint  upon  the  performance  of  the  various  social 
duties  by  which  men  are  bound  to  each  other,  and  by  which  society 
is  kept  up. 

The  rule  appears  to  have  oeen  correctly  laid  down  by  the  Court , 
of  Exchequer,^  that,  "if  fairly  warranted  by  any  reasonable  occa-j 
sion  of  exigency,  and  honestly  made,  such  communications  are  pro-> 
tected,  for  the  common  convenience  and  welfare  of  society ;  and  the 
law  has  not  restricted  the  right  to  make  them,  within  any  narrow 
limits."     In  the  present  case,  the  defendant  stood  in  a  different 
situation  from  any  other  person ;  he  was  the  only  person  in  the 
world  who  had  received  the  letter^  or  was  acquainted  with  the  in- 
formation contained  in  it.    He  cannot,  therefore,  properly  be  treated 
as  a  complete  stranger  to  the  subject-matter  of  inquiry,^  even  if  the 
rule  excluded  strangers  from  the  privilege. 

Upon  the  second  ground  of  qualification — was  the  danger  suf- 
ficiently imminent  to  justify  the  communication — it  is  true,  that  the 
letter,  which  came  to  the  defendant's  hands  about  the  14th  of  De- 
cember, contains  within  it  the  information  that  the  ship  cannot  get 
out  of  harbor  before  the  end  of  the  month.  It  was  urged  that 
the  defendant,  instead  of  communicating  the  letter  to  the  owner, 
might  have  instituted  some  inquiry  himself.  But  it  is  to  be  observed 
that  every  day  the  ship  remained  under  the  command  of  such  a  per- 
son as  the  plaintiff  was  described  to  be,  the  ship  and  crew  continued 
exposed  to  hazard,  though  not  so  great  hazard  as  when  at  sea;  not 
to  mention  the  immediate  injury  to  the  ship-owner  which  must  nee- 


R 


'In  Toogood  v.  Spyring,  1  C.  M.  &  R.  181. 

^The  reporter  appends  this  note,  "He  did  not  cease  to  be  a  stranger  in 
point  of  interest,  by  ceasing  to  be  a  stranger  in  point  of  knowledge,"  be 
then  says.  "Quaere,  whether  the  defendant  would  have  once  more  become 
a  stranger  to  the  subject  matter  of  enquiry  upon  ceasing  to  be  the  sob 
depositary  of  the  information?" 


I088  COXHEAD    V.    RICHARDS. 

essarily  follow  from  want  of  discipline  of  the  crew,  and  the  bad 
example  of  such  a  master.  And,  after  all,  it  would  be  too  much  to 
say,  that,  even  if  the  thing  had  been  practicable,  any  duty  was  cast 
upon  the  defendant,  to  lay  out  his  time  or  money  in  the  investi- 
gation of  the  charge. 

Upon  the  consideration  of  the  case,  I  think  it  was  the  duty  of 
the  defendant  not  to  keep  the  knowledge  he  gained  by  this  letter 
himself,  and  thereby  make  himself  responsible,  in  conscience,  if  his 
neglect  of  the  warnings  of  the  letter  brought  destruction  upon  the 
ship  or  crew — that  a  prudent  and  reasonable  man  would  have  done 
the  same ;  that  the  disclosure  was  made,  not  publicly,  but  privately 
to  the  owner,  that  is,  to  the  person  who  of  all  the  world  was  the 
best  qualified,  both  from  his  interest  in  the  subject-matter,  and  his 
knowledge  of  his  own  officers,  to  form  the  most  just  conclusion 
as  to  its  truth,  and  to  adopt  the  most  proper  and  effective  measures 
to  avert  the  danger ;  after  which  disclosure,  not  the  defendant,  but 
the  owner,  became  liable  to  the  plaintiff,  if  the  owner  took  steps 
which  were  not  justifiable;  as,  by  unjustly  dismissing  him  from  his 
employment,  if  the  letter  was  untrue.  And,  as  all  this  was  done 
with  entire  honesty  of  purpose,  and  in  the  full  belief  of  the  truth 
of  the  information, — and  that,  a  reasonable  belief, — I  am  still  of  the 
same  opinion  which  I  entertained  at  the  trial,  that  this  case  ranges 
itself  within  the  pale  of  privileged  communication,  and  that  the  ac- 
tion is  not  maintainable. 

I  therefore  think  the  rule  for  setting  aside  the  verdict  and  for 
a  new  trial,  should  be  discharged.* 

*  The  opinions  of  Tindal,  C.  J.  and  Erie,  J.  have  been  expressly  ap- 
proved by  Willes,  J.  in  Amaiin  v.  Damm,  8  C.  B.  (N.  S.)  597  (1860),  where, 
however,  the  defendant  had  a  personal  interest  to  protect,  and  Lindley,  C.  J.,  in 
Stuart  V.  Bell,  L.  R.  1891,  2  Q.  B.  341,  p.  347,  and  in  many  later  English  cases 
statements  volunteered  by  one  having  no  personal  interest  at  stake  and 
standing  in  no  family  or  other  relation  raising  any  exceptional  duty  to  the 
recipient  and  made  wholly  to  protect  the  latter's  interests  have  been  held 
privileged,  Dixon  v.  Smith,  26  L.  J.  Ex.  125  (1860),  p.  126,  one  Dawes 
having  told  the  defendant  that  he  intended  to  engage  the  plaintiff  to  attend 
his  wife's  confinement,  the  defendant  advised  him  not  to  do  so,  on  account 
of  the  plaintiff's  immorality;  Davies  v.  Snead,  L.  R.  5  Q.  B.  608  (1870), 
the  defendant  told  the  rector  of  his  parish  of  a  report  current  therein, 
that  he  and  the  plaintiff,  his  solicitor,  were  grossly  mismanaging  a  trust 
fund  and  defrauding  widows  and  orphans ;  Clark  V.  Molyneux,  L.  R.  3  Q. 
B.  D.  237  (1877),  rector  of  one  parish  informed  the  rector  of  another  of 
rumors  affecting  the  character  of  the  plaintiff,  the  latter's  curate;  Waller 
V.  Loch,  L.  R.  7  Q.  B.  Div.  619  (1881).  on  the  request  of  one  lady,  interested 
in  the  plaintiff,  a  "decayed  gentlewoman,"  the  defendant,  the  secretary  of 
a  charity  society,  investigated  her  case  and  made  an  unfavorable  report 
which  he  gave  to  the  lady,  giving  her  permission  to  show  it  to  a  friend,  who 
was  also  interested  in  the  plaintiff  but  who  had  made  no  inquiries  of  the 
defendant's  society;  Stuart  v.  Bell,  L.  R.  1891.  2  Q.  B.  341,  the  defendant,  the 
Mayor  of  Newcastle  and  the  host  of  the  plaintiff's  master,  showed  the  latter 
a  letter  received  from  the  police  of  Edinburgh  through  the  police  of  New- 
castle, to  the  effect  that  the  plaintiff  was  suspected  of  theft  at  that  place; 
the  defendant  had  no  personal  interest  in  the  plaintiff's  honesty  as  he  was  leav- 
ing that  day  with  his  master;  see  also  James  v.  Boston,  2  C.  &  K.  4  (1845), 
with  which  compare  Mott  v.  Dawson,  46  Iowa,  533  (1877),  where  the  servant 
of  a  vendor  after  a  sale,  informed  the  vendee  that  he  had  been  cheated* 


i 


COXIIEAD   t»    RICHARDS.  IO89 

CoLTMAN,  J.  It  has  been  generally  held,  and,  in  my  judgment, 
rightly  held,  that  the  question  whether  a  communication  is  privi- 
leged or  not,  is  a  question  of  law  for  the  judge ;  but,  in  considering 
the  question  whether  a  communication  is  privileged  or  not,  the  con- 
dition necessary  to  make  it  privileged,  must  be  assumed.  The  ques- 
tion of  law  is,  whether,  assuming  that  the  defendant  really  and  bona 
fide  believed  the  contents  of  the  letter  to  be  true,  the  occasion  was 
such  as  justified  the  making  of  the  communication ;  in  other  words, 
according  to  the  rule  laid  down  by  the  Court  of  Exchequer  in  Too- 
good  V.  Spyrmg,  where  there  was  any  duty,  public  or  private,  legal 
or  moral,  calling  on  the  defendant  to  make  the  communication  com- 
plained of.  It  cannot,  I  think,  be  said  that  there  was  any  legal  duty ; 
was  there  any  moral  duty,  calling  on  him  to  make  it  ? 

The  necessity  which  exists  in  the  transactions  of  society,  for 
free  inquiry,  and  for  facilities  in  obtaining  information  for  the 
guidance  of  persons  engaged  in  important  matters  of  business,  has 
so  far  prevailed,  that  it  has  been  established  as  a  rule,  that,  for 
words  spoken  confidentially  upon  advice  asked,  no  action  lies,  unless 
express  malice  can  be  proved :  Bromage  V.  Prosser.  The  duty  which 
may  be  supposed  to  exist,  to  give  advice  faithfully  to  those  who  are 
iii  want  of  it,  has  been  allowed  to  prevail  for  the  sake  of  the  gen- 
eral convenience  of  business,  though  with  some  disregard  of  the 
equally  important  rule  of  morality,  that  a  man  should  not  speak  ill, 
falsely,  of  his  neighbor.  Even  though  the  statement  be  not  on  ad- 
vice asked,  but  is  made  voluntarily,  that  circumstance  was  said,  in 
Pattison  v.  Jones,  not  necessarily  to  prevent  the  statement  from  be- 
ing considered  as  privileged.  Assuming,  then,  upon  the  authority 
of  that  case,  that  the  circumstances  of  the  communication  being  vol- 


HoUenheck  v.  Ristine,  105  Iowa  488  (1898).  114  Iowa  358  (1901),  state- 
ments to  plaintiff's  employer;  Hart  v.  Reed,  1  B.  Monr.  166  (Ky.  1840), 
defendant  communicated  to  a  third  person  certain  rumors  casting  suspi- 
cion on  the  plaintiff,  with  the  request  that  he  would  look  into  them  and 
give  such  information  as  he  thought  best  to  the  employer  whom  the  de- 
fendant did  not  know  personally,  this  was  held  privileged  as  being  for 
the  protection  of  the  interests  of  both  employer,  if  the  plaintiff  were  guilty, 
and  of  the  plaintiff,  if  the  rumors  were  unfounded,  since  he,  knowing 
them,  could  meet  and  disprove  them;  thresh  v.  Cutter,  72  IMd.  87  (1890), 
statements  by  former  employer  of  plaintiff  to  the  latter's  present  employer; 
and  see  Dale  v.  Harris,  109  Mass.  193  (1872),  where  such  statements  were 
held  privileged  if  made  to  a  friend,  who  was  "talking  of  employnig  the 
plaintiff";  Morton  v.  Knipe,  112  N.  Y.  S.  451  (1908).  information  to  lajid- 
lord  as  to  character  of  his  tenant;  Noonan  v.  Or  ton,  32  Wis.  106  (1873), 
and  Hubbard  v.  Rutledge,  57  Miss.  7  (1879),  defendants  reported  to  in- 
surance company  their  belief  that  the  plaintiff  had  himself  set  fire  to  their 
houses  insured  by  the  company. 

It  is  generally  held  that  a  stranger,  neither  the  child's  employer,  teacher, 
pastor,  nor  a  member  of  its  family,  can  inform  the  child's  parent,  volun- 
tarily or  on  the  latter's  request,  of  the  child's  criminal  or  wrongful  con- 
duct. Peacock  v.  Reynal,  2  Brownlow  &  Goldsborough  151  (1612),  "this 
is  only  reformatory,"  Lightbodx  v.  Gordon,  9  Sc.  Sess.  Cases,  4th  Series, 
934  (1882)  ;  Moore  v.  Butler,  48  X.  H.  161  (1868)  ;  Long  v.  Peters,  47  Iowa 
239  (1877),  in  some  of  the  cases  the  communication  is  also  privileged 
because  made  not  only  out  of  duty  to  the  parent  but  for  the  protection  of 
the  informant,  the  victim  of  the  child's  wrong. 


logo  COXHEAD   7'j    RICHARDS. 

untary,  is  no  insuperable  bar  to  its  being-  regarded  as  a  privileged 
communication,  we  return  to  the  consideration  of  the  question, 
whether  there  was  any  moral  duty,  binding  on  the  defendant,  to 
make  the  communication  now  in  question.  And,  on  the  best  con- 
sideration I  can  give  the  subject,  I  think  the  duty  was  plainly  the 
other  way.  The  duty  of  not  slandering  your  neighbour  on  insuf- 
ficient grounds,  is  so  clear,  that  a  violation  of  that  duty  ought  not 
to  be  sanctioned  in  the  case  of  voluntary  communications,  except 
under  circumstances  or  great  urgency  and  gravity. 

In  the  present  case,  the  occasion  was  in  no  respect  urgent.  The 
vessel  was  not  to  sail  till  the  end  of  the  month.  There  was  abundant 
time  for  the  defendant  to  write  to  the  mate,  and  for  the  mate  to  act 
as  he  should  be  advised;  or  for  the  defendant  to  take  any  other 
steps  to  ascertain  the  truth  of  the  statement,  before  he  communi- 
cated it  in  a  quarter  where  it  was  likely  to  be  productive  of  so  much 
injury  to  the  plaintiff.  It  appears  to  me,  therefore,  that  the  commu- 
nication ought  not  to  be  considered  as  being  privileged,  and  that  its 
being  made  bona  fide  did  not  entitle  the  defendant  to  a  verdict :  and, 
with  the  greater  deference  to  those  who  differ  from  me,  and  whose 
opinions  are  entitled  to  much  more  weight  than  that  which  I  have 
formed,  I  think  it  my  duty  to  state  my  own. 

Creswell,  J.  There  is  no  doubt  that  the  letter  published  by 
the  defendant  of  the  plaintiff',  was  defamatory;  and  the  truth  of 
its  contents  could  not  be  proved.  The  plaintiff  was,  therefore,  en- 
titled to  maintain  an  action  against  the  publisher  of  that  letter,  unless 
the  occasion  on  which  it  was  published  made  the  publication  of  such 
letter  a  lawful  act,  as  far  as  the  plaintiff  was  concerned,  if  done  in 
good  faith,  and  without  actual  malice.  To  sustain  an  action  for 
libel  or  slander,  the  plaintiff'  must  show  that  it  was  malicious ;  but 
every  unauthorized  publication  of  defamatory  matter  is,  in  point  of 
law,  to  be  considered  as  malicious.  The  law,  however,  on  a  principle 
of  policy  and  convenience,  authorizes  many  communications,  al- 
though they  affect  the  characters  of  individuals ;  and  I  take  it  to  be 
a  question  of  law,  whether  the  communication  is  authorized  or  not. 
If  it  be  authorized,  the  legal  presumption  of  malice  arising  from 
the  unauthorized  publication  of  defamatory  matter,  fails,  and  the 
plaintiff,  to  sustain  his  action,  must  prove  actual  malice,  or,  as  it  is 
usually  expressed,  malice  in  fact.  In  the  present  case,  the  exist- 
ence of  malice  in  fact  was  negatived  by  the  jury ;  and  if  my  lord  was 
right  in  telling  them,  that,  in  the  absence  of  malice  in  fact,  the  pub- 
lication of  the  letter  was  privileged,  this  rule  should  be  discharged. 
It  therefore  becomes  necessary  to  inquire  within  what  limits  and 
boundaries  the  law  authorizes  the  publication  of  defamatory  mat- 
ter. Perhaps  the  best  description  of  those  limits  and  boundaries 
that  can  be  given  in  a  few  words,  is  to  be  found  in  the  judgment  of 
Parke,  B.,  in  Toogood  v.  Spyring:  "The  law  considers  such  publi- 
cation as  malicious,  unless  it  is  fairly  made  by  a  person  in  the  dis- 
charge of  some  public  or  private  duty,  whether  legal  or  moral,  or 
in  the  conduct  of  his  own  affairs  in  matters  where  his  interest  is 
concerned."     It  was  not  contended  in  this  case  that  any  legal  duty 


I 


COXHEAD   V.    RICHARDS.  IO9I 

bound  the  defendant  to  communicate  to  the  ship-owner  the  contents 
of  the  letter  he  had  received,  nor  was  the  communication  made  in 
the  conduct  of  his  own  affairs,  nor  was  his  interest  concerned :  the 
authority  for  the  pubHcation,  if  any,  must  therefore  be  derived  from 
some  moral  duty,  pubhc  or  private,  which  it  was  incumbent  upon 
him  to  discharge.  I  think  it  is  impossible  to  say  that  the  defendant 
was  called  upon  by  any  public  duty  to  make  the  communication ; 
neither  his  own  situation  nor  that  of  any  of  the  parties  concerned, 
nor  the  interests  at  stake,  were  such  as  to  affect  the  public  weal. 
Was  there  then  any  private  duty?  There  was  no  relation  of  prin- 
cipal and  agent  between  the  ship-owner  and  the  defendant,  nor  was 
any  trust  or  confidence  reposed  by  the  former  in  the  latter ;  there 
was  no  relationship  or  intimacy  between  them  ;  no  inquiries  had 
been  made  ;  they  were,  until  the  time  in  question,  strangers  ;  the  duty, 
if  it  existed  at  all  as  between  them,  must,  therefore,  have  arisen 
from  the  mere  circumstance  of  their  being  fellow-subjects  of  the 
realm. ^  But  the  same  relation  existed  between  the  defendant  and 
the  plaintiff.  If  the  property  of  the  ship-owner  on  the  one  hand 
was  at  stake,  the  character  of  the  captain  was  at  stake  on  the  other ; 
and  I  cannot  but  think  that  the  moral  duty  not  to  publish  of  the 
latter  defamatory  matter  which  he  did  not  know  to  be  true,  was 
quite  as  strong  as  the  duty  to  communicate  to  the  ship-owner  that 
which  he  believed  to  be  true.  Was,  then,  the  defendant  bound  by 
any  moral  duty  toward  the  writer  of  the  letter,  to  make  the  com- 
munication? Surely  not.  If  the  captain  had  misconducted  himself, 
the  mate  was  capable  of  observing  it,  and  was  as  capable  of  com- 
municating it  to  the  owner  as  to  the  defendant.  The  crew  were,  in 
like  manner,  capable  of  observing  and  acting  for  themselves.  The 
mate  (if  he  really  believed  that  which  he  wrote  to  be  true)  might, 
indeed,  be  under  a  moral  duty  to  communicate  it  to  his  owner :  but 
the  defendant  had  no  right  to  take  that  vicarious  duty  upon  himself : 
he  was  not  requested  by  the  mate  to  do  so,  but  was,  on  the  contrary, 
enjoined  not  to  make  the  communication. 

I  will  not  attempt  to  comment  upon  the  very  numerous  cases 
that  were  quoted  at  the  bar  on  the  one  side  and  on  the  other,  but 
will  advert  to  one  or  two  which  tend  to  explain  the  term  "moral 


''In  Fanspike  v.  Cleyson.  Cro.  Eliz.  541  (1596),  unsolicited  advice  given 
by  the  defendant  to  one  Dudley,  a  fellow  merchant,  to  call  in  a  loan  made 
by  the  latter  to  the  plaintiff,  adding,  "you  had  best  not  trust  him."  was 
held  not  to  be  "any  slander  but  good  counsel  to  Dudley";  but  see  Parson 
Prick's  Case,  post. 

In  Herver  v.  Dowson,  Buller  N.  P.  8  (1764),  unsolicited  advice  as  to 
the  plaintiff's  solvency  spoken  in  "confidence  and  warning"  was  held  priv- 
ileged; and  see  Picton  v.  Jackman,  4  C.  &  P.  257   (1830). 

Except  for  the  dictum  of  Lord  Mansfield  in  Lozvrv  v.  Aikenhead, 
(1767),  cited  by  Chambre  J.  in  Rogers  v.  Clifton,  3  B.  &  P.  587  (1803),  p. 
594,  with  which  compare  Pattison  v.  Jones,  post,  the  existence  of  any  dis- 
tinction between  information  volunteered  and  furnished  upon  inquiry,  is 
first  suggested  bv  Park,  J.  in  his  charge  to  the  jury  in  Cockayne  v.  Hodgkis- 
son,  5  C.  &  P.  543  (1833),  and  stated  by  Denman  C.  J.  and"  Abinger  C.  B. 
charging  juries  in  Storey  v.  Challands,  8  C.  &  P.  234  (1838),  and  King  v. 
Watts,  ?>  C.  &  P.  614  (1838). 


1092  COXHEAD    Z'.    RICHARDS. 

duty,"  and  see  whether  it  has  ever  been  held  to  authorize  the  pub- 
Hcation  of  defamatory  matter  under  circumstances  similar  to  those 
which  exist  in  the  present  case.  With  regard  to  the  characters  of 
servants  and  agents,  it  is  so  manifestly  for  the  advantage  of  society 
that  those  who  .are  about  to  employ  them  should  be  enabled  to  learn 
what  their  previous  conduct  has  been,  that  it  may  be  well  deemed 
the  moral  duty  of  former  employers  to  answer  inquiries  to  the  best 
of  their  belief.  But,  according  to  the  opinion  of  the  same  learned 
judge,  intimated  in  Pattison  \'..  J  ones,  it  is  necessary  that  inquiry 
should  be  made,  in  order  to  render  lawful  the  communication  of 
defamatory  matter,  although  he  was  also  of  opinion  that  such  in- 
quiry may  be  invited  by  the  former  master.  And  in  Rogers  v.  Clif- 
ton, Chambre,  J.,  quoted  a  similar  opinion  of  Lord  Mansfield's,  ex- 
pressed in  Lozvry  v.  Aikenhcad,  J\Iich.  8  G.  3,  3  B.  &  P.  594. 

Two  cdL?,Q.s—Herver  v.  Dowson,  Bull.  N,  P.  8,  and  Cleaver  v. 
Sarraude,  reported  in  McDougall  v.  Claridge,  i  Campb.  268 — were 
quoted  as  authorities  for  giving  a  more  extended  meaning  to  the 
term  ''moral  duty,"  and  making  it  include  all  cases  where  one  man 
had  information,  which,  if  true,  it  would  be  important  for  another  to 
know.  But  the  notes  of  those  cases  are  very  short :  in  the  former 
the  precise  circumstances  under  which  the  statement  was  made — 
see  King  v.  Watts,  8  C.  &  P.  614,  that  such  a  statement  made  zeitli- 
out  inquiry  is  not  lawful — and  in  the  latter,  the  position  of  the  de- 
fendant with  reference  to  the  Bishop  of  Durham,  to  whom  it  was 
made,  are  left  unexplained.  I  cannot,  therefore,  consider  them  as 
satisfactory  authorities  for  the  position  to  establish  which  they  were 
quoted:  and,  in  the  absence  of  any  clear  and  precise  authority  in 
favour  of  it,  I  cannot  persuade  myself  that  it  is  correct,  as,  if  estab- 
lished at  all,  it  must  be  at  the  expense  of  another  moral  duty,  viz., 
not  to  publish  defamatory  matter  unless  you  knoiv  it  to  be  true. 

For  these  reasons,  I  am  of  opinion,  that  the  rule  for  a  new  trial 
should  be  made  absolute. 

Erle,  J.  In  the  present  case,  the  defendant,  having  reason  to 
believe  that  he  was  in  possession  of  information  important  to  the 
ship-owner,  in  respect  of  his  captain,  gave  it  for  the  purpose  of  pre- 
venting a  considerable  damage  to  his  property  from  misconduct; 
and,  on  this  ground,  appears  to  me  to  be  justified. 

The  defendant  also  had  reason  to  believe,  that,  by  giving  this 
information,  he  should  save  the  lives  of  the  crew ;  and  on  this' 
ground  also,  he  appears  to  me  to  be  justified  in  giving  it,  either  to 
the  crew,  or  to  the  ship-owner  on  their  behalf,  supposing  always  that 
the  jury  found  that  he  acted  with  good  faith. 

Some  objection  was  made  to  the  mode  of  communication.  But 
it  appears  to  me  to  have  been  as  cautious  as  could  be  required  under 
the  circumstances ;  and,  if  the  defendant  acted  incautiously,  or  went 
to  some  degree  beyond  what  may  be  thought  to  have  been  strictly 
required  for  his  purpose,  these  were  matters  for  the  jury,  as  evi- 
dence of  malice. 

The  evil  likely  to  arise  from  protecting  information  bona  fide 
given  to  prevent  damage  from  misconduct,  appears  to  me  much  less 


KREBS    Z'.    OLIVER.  I093 

than  that  which  wouio  result  from  putting  a  stop  to  such  informa- 
tion, by  rendering  the  giver  of  it  Hable  in  damages,  unless  he  has 
legal  proof  of  the  truth :"  and  the  circumstance  of  the  information 
being  officious,  or  without  reasonable  grounds,  or  of  slight  impor- 
tance, ought  to  be  appreciated  by  the  jury. 

It  follows,  that  in  my  judgment,  the  rule  should  be  discharged. 

The  court  being  thus  divided  in  opinion,  the  rule  for  a  new  trial 
fell  to  the  ground,  and  the  defendant  retained  his  verdict.^ 


KREBS  V.  OLIVER. 
Supreme  Judicial  Court  of  Massachusetts,  1858.     12  Gray,  239. 

Action  of  tort  for  slander,  in  falsely  and  maliciously  accusing 
the  plaintiff  of  the  crime  of  larceny  by  words  in  substance  as  fol- 
lows :  "Dr.  Krebs  was  imprisoned  many  years  in  a  penitentiary  in 
Germany  for  larceny." 

At  the  trial  before  Thomas,  ].,  the  defendant  testified  that  he 
had  been  on  intimate  terms  with  the  members  of  the  family  to  whom 
the  charges  against  the  plaintiff's  character  had  been  communicated ; 
that  he  had  always  repeated  them  as  reports  which  he  had  heard ; 
that  he  had  not  been  previously  acquainted  with  the  plaintiff ;  that 
he  had  no  malicious  intent  in  speaking,  and  that  he  made  the  com- 
munications in  good  faith,  and  in  pursuance  of  what  he  considered 
a  duty. 

The  defendant  also  prayed  the  court  to  instruct  the  jury,  "that 
if  the  words  alleged  to  have  been  spoken  by  the  defendant  of  the 
plaintiff  were  confidentiall}'^  communicated  by  the  defendant  to  the 
members  of  the  family  of  a  lady  whom  the  plaintiff  was  about  to 
marry,  with  which  family  the  defendant  was  familiarly  acquainted 
and  on  terms  of  friendship,  and  if  the  defendant  believed  them  to 
be  true,  and  they  were  spoken  in  good  faith  and  without  malice,  and 
in  pursuance  of  what  the  defendant  believed  to  be  his  moral  duty, 
it  was  a  privileged  communication,  and  the  plaintiff  cannot  re- 
cover." But  the  court  refused  to  give  this  instruction ;  and  ruled 
"that  the  fact  that  the  plaintiff  was  about  to  be  married  could  not 
justify  the  defendant  in  reporting  to  the  members  of  the  lady's  fam- 
ily the  charges  alleged,  if  false,  no  inquiry  having  been  made  of  the 
defendant  or  information  requested  from  him ;  that  the  defendant 

"So  Erie  C.  J.  says  in  WhiteJey  v.  Adams.  15  C.  B.  N.  S.  392  (1863),  p. 
418,  "It  is  to  the  interest  of  society  that  correct  information  should  be  ob- 
tained as  to  the  character  of  the  persons  in  whom  others"  {sic)  "have  an 
interest.  If  every  word  which  is  uttered  to  the  discredit  of  another  is  to  be 
made  the  ground  of  an  action,  cautious  persons  will  take  care  that  all  their 
words  are  words  of  praise  only,  and  will  cease  to  obey  the  dictates  of 
truth." 

^  In  Bennett  v.  Deacon,  2  C.  B.  628  (1846),  decided  by  the  same  judges 
in  the  same  court  three  months  later,  the  same  division  of  opinion  appear- 
ing, a  verdict  for  the  plaintiff  was  allowed  to  stand,  the  defendant  having, 
in  answer  to  a  friend's  statement,  that  he  was  going  to  sell  goods  to  the 
plaintiff  on  credit,  made  imputations  upon  his  solvency. 


I094 


KREBS 


OLIVER. 


sustained  no  relation  to  the  family  of  the  lady  which  would  make 
the  communication  privileged  in  law,  and  that  the  defence  could  not 
be  maintained." 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

BiGELow,  J.^  We  cannot  doubt  that  the  words  alleged  in  the 
declaration  are  actionable.  We  think  it  equally  clear  that  the  words 
spoken  cannot  be  regarded  as  a  privileged  communication  or  justi- 
fied by  the  occasion  on  which  they  were  uttered.  It  does  not  appear 
that  the  defendant  in  speaking  them  acted  either  for  the  protection 
of  any  interest  of  his  own,  or  in  the  discharge  of  any  duty,  social, 
moral  or  legal.  The  person  whom  the  plaintiff  was  about  to  marry 
was  neither  dependent  on  the  defendant  nor  connected  with  him  by 
the  ties  of  consanguinity  or  otherwise.^  No  inquiry  was  made  of 
him  by  her  or  her  parents  or  near  relatives  concerning  the  char- 
acter of  the  plaintiff.^  He  w^as  strictly  a  volunteer  in  making  the 
communication.  A  mere  friendly  acquaintance  or  regard  does  not 
impos2  a  duty  of  communicating  charges  of  a  defamatory  character 
concerning  a  third  person,  although  they  may  be  told  to  one  who  has 
a  strong  interest  in  knowing  them.  The  duty  of  refraining  from  the 
utterance  of  slanderous  words,  without  knowing  or  ascertaining 
their  truth,  far  outweighs  any  claim  of  mere  friendship.  Indeed  it 
would  be  difficult  to  conceive  of  a  case  in  which  a  party  could  not 
shelter  himself  within  the  protection  of  his  privilege,  if  the  rule 
should  be  established  that  one  having  no  interest  of  his  own  to  pro- 
tect, without  inquiry  or  application  by  one  who  might  have  such  in- 
terest, could  be  allowed  to  utter  defamatory  w^ords,  on  the  ground 
that  he  held  the  relation  of  a  friend  toward  the  person  to  whom 


^  A  part  of  the  opinion,  holding  that  the  trial  court  did  not  err  in  re- 
fusing to  charge  that  the  words  spoken  were  not  actionable  per  sc,  is  omitted. 

^In  the  following  cases  communications  as  to  the  character  of  a  fiance 
made  to  a  girl  or  woman  by  a  member  of  her  family  were  held  privileged, 
Bayssct  v.  Hire,  49  La.  Ann.  904  (1897),  statements  by  a  father;  Harriott 
v.  Plimpton,  166  Mass.  585  (1896).  by  the  father  and  others  at  his  request; 
Adams  v.  Coleridge,  1  Times  L.  R.  84  (1884),  by  brother  to  sister;  Todd 
v.  Hawkins,  8  C.  &  P.  88  (1837),  son  in  law  to  mother  in  law.  So  a  com- 
munication by  a  son  giving  advice  to  his  mother  in  regard  to  her  business 
interests  is  privileged,  Kimble  v.  Kimble,  14  Wash.  369   (1896). 

Statements  made  within  the  family  circle  in  regard  to  the  fiance  or 
suitor  of  a  member  thereof  are  held  privileged  in  McBride  v.  Ledoux,  111 
La.  398  (1904),  statements  by  a  girl's  sister  in  law  to  her  sister  in  law,  the 
girl's  sister.  A  wide  latitude  of  discussion  within  the  family  circumstances 
of  matters  of  interest  to  all,  because  it  affects  the  interest  of  one  of  them, 
is  allowed  in  Campbell  v.  Bannister,  79  Ky.  205  (1880).  a  man  whose  house 
had  been  burned  stated  to  members  of  his  family  his  belief  that  plaintiff 
had  set  it  on  fire,  but  see  Paris  v.  Starke,  9  Dana  128  (Ky.  1839),  in  which 
the  right  to  talk  with  others  over  matters  of  interest  to  oneself  is  stated 
so  broadly  as  to  include  strangers  as  well  as  members  of  one's  family. 

Wnswers  to  inquiries  by  the  girl  herself,  or  her  father,  or  other  mem- 
bers of  her  family  are  privileged,  Buisson  v.  Hnard,  106  La.  768  (1901); 
Harriott  v.  Plimpton,  166  :Mass.  585  (1896).  So  in  Atzuill  v.  Mackintosh, 
120  I\Tass.  177  (1876),  the  report  of  one  employed  by  a  father  to  investigaie 
the  character  of  his  daughter's  suitor  was  held  privileg-td. 


SAMPLES    V.    CARNAHAN.  IO95 

he  communicated  the  slander.     We  know  of  no  rule  which  holds 
such  communications  to  be  privileged  by  the  occasion.* 

The  instructions  which  the  defendant  requested  on  this  part  of 
the  case  were  therefore  properly  refused. 

Exceptions  overruled. 


SAMPLES  V.  CARNAHAN. 
Appellate  Court  of  Indiana,  1898.    21  Indiana  Appeals,  55. 

One  McNaught  held  a  note  against  one  Halton,  which  he  sent 
to  the  plaintiff  for  collection.  The  plaintiff's  methods  offended 
Halton,  who  told  the  defendant,  that  if  they  were  continued  he 
would  never  pay  the  note.  The  defendant,  who  had  business  rela- 
tions with  McNaught,  wrote  him  a  letter  advising  him  to  take  the 
note  out  of  the  plaintift"'s  hands  and  containing  the  defamatory  mat- 
ter complained  of.  The  defendant's  third  answer  averred  in  sub- 
stance that  he  had  honestly  and  in  good  faith,  with  probable  cause 
and  interest,  written  the  letter  in  view  of  the  above  facts  and  the 
duty  he  owed  to  McNaught,  as  a  customer  and  the  interest  he  had 
in  his  business  success  as  such. 

Robinson,  J.  It  is  argued  by  the  appellee's  counsel  that  the 
third  paragraph  of  answer  was  good  in  bar  of  the  action,  as  repre- 
senting facts  showing  that  the  letter  complained  of  was  a  privileged 
communication ;  but  with  this  view  of  the  pleading  we  cannot  agree. 
It  does  not  appear  that  the  letter  was  written  in  answer  to  a  con- 
fidential inquiry,  nor  does  the  pleading  show  that  the  relationship 
between  appellee  and  the  one  to  whom  the  letter  was  addressed  was 
one  which  the  law  deems  confidential.  It  does  not  appear  that  they 
were  related,  or  that  they  were  intimate  friends,  but  simply  that 
they  were  acquaintances  who  had  had  business  dealings  with  each 
other.     See  Krehs  v.  Oliver,  78  Mass.  239 ;  Count  Joannes  v.  Ben- 

*  Accord:  "Joannes"  v.  Bennett,  5  Allen  169  (Mass.  1862),  defendant, 
who  had  been  pastor  of  a  church  of  which  the  girl  and  her  family  had  been 
members  and  who  was  still  an  intimate  friend  of  the  family,  wrote  a  letter 
derogatory  to  the  character  of  the  plaintiff  who  was  a  suitor  for  the  girl's 
hand.  Whether  the  communication  would  have  been  privileged  had  the 
relation  of  pastor  of  the  family  continued,  was  left  undecided ;  Byam  v. 
Collins,  111  N.  Y.  143  (1888),  Danforth  J.  dissenting,  defendant  had  been 
an  intimate  friend  of  the  woman,  though  the  intimacy  had  terminated  some 
months  before,  and  four  years  earlier  the  woman  had  requested  the  de- 
fendant to  give  her  any  information  she  might  have  as  to  the  character 
of  the  young  men  of  their  common  acquaintance;  Contra;  Adcock  v.  Marsh, 
30  N.  Car.  360  (1848),  where,  though  the  defendant  had  been  requested  by 
the  girl's  deceased  mother  to  give  her  advice,  it  was  held  that  "without 
any  request  she  would  have  been  justified  in  stating  her  belief  in  the  bad 
character  of  the  girl's  step-mother  as  a  reason  for  advising  her  to  leave 
her  father's  home." 

Iri  Nix  y.  Caldwell,  81  Ky.  293  (1883),  the  right  to  volunteer  informa- 
tion, is  denied  where  only  the  recipient  has  any  interest  to  be  protected, 
is  said  to  be  confined  "to  cases,  where  the  parties  by  reason  of  their  rela- 
tion to  each  other  are  interested  in  the  subject-matter"  of  the  communi- 
cation, such  as  statements  by  an  agent  to  a  principal,  or  a  father  to  a  son. 


1096 


PATTISON 


JONES. 


nett,  S,y  Mass.  169.  The  letter  does  not  appear  to  have  been  written 
in  answer  to  any  previous  inquiry,  but  to  have  been  voluntarily 
written.  And  it  has  been  said  that,  where  the  matter  is  not  of  great 
or  immediate,  importance,  interference  may  be  considered  officious 
and  meddlesome,  although,  if  the  party  had  been  applied  to,  it  would 
clearly  have  been  his  duty  to  give  all  the  information  he  could ;  and 
an  answer  to  a  confidential  inquiry  may  be  privileged,  where  the  same 
information,  if  volunteered,  would  be  actionable.  See  Odgers  Libel  & 
Slander  (2d  ed.),p.  204,^?  seq.  We  are  unable  to  say  that  the  matter 
mentioned  in  the  letter  was  of  such  importance  as  to  ^warrant  the 
language  used  in  the  letter ;  nor  can  we  say  that  the  circumstances 
were  such  as  reasonably  imposed  on  appellee  the  duty  to  make  such 
statements  as  those  contained  in  the  letter,  although  he  may  have 
believed  he  was  writing  the  truth.  As  has  been  well  said,  "Although 
the  defendant  may  feel  sure  that  if  he  were  in  his  neighbor's  place, 
he  should  be  most  grateful  for  the  information  conveyed,  still  he 
must  recollect  that  it  may  eventually  turn  out  that  in  endeavoring 
to  avert  a  fancied  injury  to  that  neighbor,  he  has  really  inflicted  an 
undoubted  and  undeserved  injury  on  the  plaintifif."  Odgers  Libel 
&  Slander  (2d  ed.),  216,  and  cases  cited.  Taking  account  of  the 
cirtumstances  under  which  the  letter  was  written,  the  relation  at 
the  time  existing  between  the  appellee  and  the  recipient  of  the  let- 
ter, the  nature  of  the  matter  about  which  the  letter  was  written, 
and  the  language  used  in  the  letter,  we  cannot  say  that  the  letter 
was  privileged.^ 


PATTISON  V.  JONES. 

Court  of  King's  Bench,  1828.    8  Barnezvall  &  Cresswell,  578. 

Bayley,  J.  Generally  speaking,  anything  said  or  written  by  a 
master  when  he  gives  the  character  of  a  servant  is  a  privileged 
communication.  If  a  servant,  therefore,  charge  a  master  with  pub- 
lishing a  libel,  it  is  competent  to  the  latter,  under  the  general  issue, 
to  prove  that  the  alleged  libel  was  written  under  such  circumstances 
as  to  make  it  a  privileged  communication,  and  thereby  throw  on  the 
plaintiff  the  necessity  of  shewing  that  it  does  not  come  within  that 
protection  which  the  law  gives  to  a  privileged  communication.  But 
if  the  supposed  libel  be  not  communicated  bona  fide,  it  does  not  fall 
within  the  protection  which  the  law  extends  to  privileged  communi- 
cations. Here  the  second  letter  of  the  defendant  was  written  in 
answer  to  one  calling  upon  him  to  give  an  account  of  the  plaintiff's 
conduct,  but  the  defendant  wrote  his  first  letter  without  being  called 
upon  so  to  do.  I  do  not  mean  to  say  that  in  order  to  make  libellous 
matter  written  by  a  master  privileged,  it  is  essential  that  the  party 

^In  "Joannes"  v.  Bennett,  5  Allen  169  (Mass.  1862).  Bigclow  C.  J.  says: 
"The  duty  of  avoiding  the  use  of  defamatory  words  can  not  be  set  aside, 
except  where  it  is  essential  for  the  protection  of  some  substantial  private 
interest,  or  to  the  discharge  of  some  other  paramount  and  urgent  duty."' 


MORSE   V.    TIMES  REPUBLICAN    PRINTING    CO.  IO97 

who  makes  the  communication  should  be  put  into  action  in  conse- 
quence of  a  third  party's  putting  questions  to  him.  I  am  of  opinion 
he  may  (when  he  thinks  another  is  about  to  take  into  his  service 
one  whom  he  knows  ought  not  to  be  taken)  set  liimself  in  motion, 
and  do  some  act  to  induce  that  other  to  seek  information  from  and 
put  questions  to  him.  The  answers  to  such  questi-^ns,  given  bona 
fide  with  the  intention  of  communicating  such  facv._  as  the  other 
party  ought  to  know,  wiU,  although  they  contain  slanderous  matter, 
come  within  the  scope  of  a  privileged  communication.  But  in  such 
a  case  it  will  be  a  question  for  the  jury,  whether  the  defendant  has 
acted  bona  fide,  intending  honestly  to  discharge  a  duty ;  or  whether 
he  has  acted  maliciously,  intending  to  do  an  injury  to  the  servant? 
In  forming  their  judgment,  the  jury  in  this  case  were  bound  to  take 
into  their  consideration  the  fact-  of  the  defendant's  having  volun- 
tarily put  himself  into  motion,  and  thereby  in  effect  having,  by  the 
first  letter,  desired  Mr.  Mornay  to  put  questions  to  him. 

Upon  the  question,  whether  a  master  who  has  written  a  libel 
in  giving  the  character  of  a  servant  has  acted  bona  fide  or  not,  it 
may  make  a  very  material  difference  whether  he  volunteered  to  give 
the  character,  or  had  been  called  upon  so  to  do.  At  all  events,  when 
he  volunteers  to  give  the  character,  stronger  evidence  will  be  re- 
quired that  he  acted  bona  fide,  than  in  the  case  where  he  has  given 
the  character  after  being  required  so  to  do. 

Rule  refused. 


MORSE  V.  TIMES-REPUBLICAN  PRINTING  CO. 

Supreme  Court  of  lozm,  1904.     124  Iowa,  707. 

Weaver,  J.  But  it  is  very  manifest  that  the  classification  of 
cases  above  given  in  which  privilege  may  be  claimed  for  matter 
otherwise  libelous  is  not  broad  enough  to  include  a  publication  such 
as  we  here  have  to  deal  with.  Some  effort  is  made  in  argument  to 
bring  it  within  the  general  scope  of  the  duty  which  defendant  owed 
to  the  public.  This  phase  of  the  doctrine  of  privilege  has  been  gen- 
erally invoked  in  cases  where  the  plaintiff  holds  or  is  a  candidate 
for  some  position  of  public  trust.  Such  has  been  the  character  of 
the  cases  in  which  this  court  has  applied  or  considered  the  plea  of 
public  duty  in  defense  of  a  charge  of  libel.  Mott  v.  Dazvson,  46 
Iowa,  533  ;  State  v.  Hash  ins,  109  Iowa,  656 ;  Bays  v.  Hunt,  60  Iowa, 
251.  The  utmost  extent  to  which  these  cases  go  is  that  where  a  per- 
son, knowing  or  honestly  believing  that  a  candidate  for  public  ofiice 
is  guilty  of  conduct  affecting  his  fitness  for  the  position  to  which 
he  aspires,  communicates  that  knowledge  or  belief  to  the  electors 
whose  support  the  candidate  seeks,  acting  in  good  faith  in  the  dis- 
charge of  his  duty  to  the  public,  the  communication  is  privileged — a 
doctrine  the  correctness  of  which  we  need  not  now  consider.  But 
there  is  no  moral  or  legal  duty  resting  upon  any  person  to  publish 
to  the  world  defamatory  matter  affecting  the  character  or  reputa- 


1098  MORSE   V.    TIMES-REPUBLICAN    PRINTING    CO. 

tion  of  one  whose  only  relation  to  the  public  is  that  of  a  private 
citizen  in  the  pursuit  of  a  lawful  private  business ;  and  if  one  as- 
sumes the  responsibility  of  proclaiming  such  matter  from'  the  house- 
tops, or  through  the  public  print,  the  law  affords  him  no  defense 
except  upon  proof  of  the  truth  of  the  publication.  An  insurance 
agent  as  such  is  not  a  public  officer,  nor  is  his  character  a  matter 
of  general  public  interest,  except  as  the  public  has  an  indirect  inter- 
est in  the  private  character  and  conduct  of  every  member  of  society, 
but  this  interest  is  not  sufffcient  to  invoke  the  privilege  of  which  we 
are  speaking.  To  hold  otherwise  would  be  to  destroy  at  one  sweep 
the  effectiveness  of  all  law  against  slander  and  libel.  Even  the  right 
to  plead  the  truth  of  a  libel  is  restricted  by  the  constitutional  pro- 
vision herein  cited  to  publications  made  "with  good  motives,  and 
for  justifiable  ends."  If  we  understand  the  force  of  the  answer 
sought  to  be  interposed  to  the  plaintiff's  action,  it  is  that  defendant, 
being  the  publisher  of  a  newspaper,  is  in  duty  bound  to  publish  the 
news  of  the  day  for  the  benefit  of  its  readers,  and  if,  after  due  in- 
vestigation, and  in  the  exercise  of  reasonable  care,  and  without  ac- 
tual malice,  it  publishes  defamatory  matter  concerning  a  citizen, 
the  person  so  injured  is  without  remedy,  such  publication  being 
privileged.  This  proposition  is  without  support  in  principle  or 
precedent.  The  publisher  has  no  right  to  publish  in  his  paper 
matters  or  statements  which  he  or  any  other  citizen  would  not  be 
justified  in  circulating  by  letter  or  by  posting  upon  the  blank  walls 
of  the  city.  Our  Constitution  guarantees  to  every  person  liberty 
"to  speak,  write,  and  publish  his  sentiments  on  all  subjects,"  but 
holds  him  "responsible  for  the  abuse  of  that  right."  Constitution 
of  Iowa,  Article  i.  Section  7.  "Liberty  of  the  press"  has  never  been 
held  to  mean  "that  the  publisher  of  a  newspaper  shall  be  any  less 
responsible  than  another  person  would  be  for  publishing  otherwise 
the  same  libelous  matter."  The  contrary  rule  has  been  affirmed  by 
the  courts  of  this  country  and  England  with  great  uniformity. 
Jones  V.  Townsend,  21  Fla.  431 ;  Shcckell  v.  Jackson,  10  Cush.  25; 
Aldrich  v.  P.  P.  Co.,  9  Minn.  138;  Root  v.  King,  7  Cow.  628;  Till- 
son  V.  Robbins,  68  Maine  295;  Smart  v.  Blanchard,  42  M.  H.  137; 
Foster  v.  Scripps,  39  Mich.  376 ;  Barr  v.  Moore,  87  Pa.  385 ;  Evis- 
ton  V.  Cramer,  47  Wis.  659;  Edzvards  v.  San  J.  Pr.  Soc,  99  Cal. 
431 ;  McAllister  v.  F.  Press,  y6  Mich.  338;  Upton  v.  Hume,  24  Ore. 
420;  Smith  V.  Tribune,  4  Biss.  477;  Davis  v.  Sladen,  17  Ore.  259; 
Barnes  v.  Campbell,  59  N.  H.  128;  Davis  v.  Duncan,  7  El.  &  Bl. 
231 ;  Mallory  v.  P.  P.  Co.,  34  Minn.  521 ;  Delaivare,  etc.,  Ins.  Co.  v. 
Crosdale,  6  Houst.  181 ;  Palmer  v.  Concord,  48  N.  H.  216.  See  also, 
exhaustive  note  by  Mr.  Freeman,  15  Am.  St.  Rep.  343.  The  tend- 
ency of  all  the  authorities  is  indicated  in  the  following  excerpts 
from  some  of  the  cases  above  cited :  "The  publisher  of  a  newspaper 
possesses  no  immunity  from  liability  on  account  of  a  libellous  pub- 
lication, not  belonging  to  any  other  citizen."  Bean,  J.,  in  Upton  v. 
Hume.  "The  press  does  not  possess  any  immunities  not  shared  by 
every  individual,"  Flandreau,  J.,  in  Aldrich  v.  P.  P.  Co.  "The  lib- 
erty of  the  press  is  not  more  under  the  protection  of  the  Constitu- 


FOWLER    V.    HOMER.  I099 

tion  than  the  hberty  of  speech,  and  the  pubHsher  of  a  newspaper 
can  only  defend  an  action  for  Hbel,  or  mitigate  the  damages  to  be 
recovered  therefore,  upon  precisely  the  same  grounds  as  any  other 
individual  could  defend  an  action  for  slander  in  uttering  the  same 
words  on  the  street."  De  Haven,  J.,  in  Edzvar.ds  v.  San  J.  Pr.  SoCo 
Further  citation  of  authorities  is  unnecessary.  None  have  beer, 
called  to  our  attention  holding  to  the  doctrine  contended  for  in  sup- 
port of  the  rulings  appealed  from.^ 


(d)    Cominunications  made  to  aid  the  administration  of  justice. 


FOWLER  V.  HOMER. 

Court  of  King's  Bench,  at  Nisi  Priiis,   1812.     3  Campbell,  294. 

This  was  an  action  for  defamation.     Plea,  the  general  issue. 

The  defendant  is  a  haberdasher.  On  a  Saturday  evening,  while 
he  was  absent,  Mrs.  Fowler  came  into  his  shop,  and  bought  some 
goods.  Soon  after  she  was  gone,  his  shopman  missed  a  roll  of 
riband,  and  mistakenly  supposed  that  she  had  stolen  it,  but  did  not 
then  pursue  her.  On  the  following  jMonday,  as  she  was  again  pass- 
ing the  shop,  the  shopman  pointed  her  out  to  the  defendant  as  the 
person  who  had  stolen  the  riband.  The  defendant  brought  her  into 
the  shop,  and  accused  her  of  the  robbery,  which  she  positively  de- 
nied. He  then  carried  her  into  an  adjoining  room,  and  sent  for  her 
father,  to  whom  he  repeated  the  accusation.  After  a  good  deal  of 
altercation,  she  was  allowed  to  go  home,  and  there  the  matter 
rested. 

Lord  Ellenborougii.  I  am  clearly  of  opinion  that  this  action 
cannot  be  maintained.  There  appears  to  be  no  malice  on  the  part  of 
the  defendant.  I  suppose  this  lady  to  be  completely  innocent  of  the 
offence  laid  to  her  charge ;  but  she  has  not  been  wantonly  or 
maliciously  calumniated.  When  a  servant  represents  to  a  master 
that  his  goods  have  been  stolen  by  a  particular  individual,  it  is  justi- 
fiable for  the  master,  with  a  view  to  enquiry,  to  tax  that  individual 
with  the  theft ;  and,  although  the  suspicion  turns  out  to  be  errone- 
ous, the  law  gives  no  redress  to  the  party  accused.  The  accusation, 
though  unfounded,  was  not  malicious.  No  doubt  it  may  prove  very 
detrimental  to  the  object  of  it ;  but  this  is  one  of  many  instances 
where,  there  being  a  loss  without  an  injury,  the  sufferer  must  con- 
sider himself  not  wronged,  but  unfortunate.  If  the  defendant  had 
continued  to  propagate  the  story  to  strangers,  that  would  have  fur- 
nished evidence  of  malice ;  but  if  he  could  not  lawfully  charge  the 
person  suspected  on  reasonable  grounds,  though  innocently,  of  hav- 
ing committed  the  theft,  it  would  be  quite  impossible  for  a  man  who 


^Accord:  Anderson  v.  Fairfax,  4  N.  S.  W.  R.  L.  183  (1883);  Atlanta 
News  Pub.  Co.  v.  Medlock,  123  Ga.  714  (1905) ;  Burt  v.  Advertiser  News- 
paper Co.,  154  Mass.  238  (1891). 


IIOO  FOWLER    Z'.    HOMER. 

is  robbed  to  enquire  with  any  safety  after  the  stolen  goods.  From 
sitting  in  another  place,  I  know  that  the  shopkeepers  of  this  town  are 
subject  to  the  most  enormous  pillage;  and  they  must  have  an  oppor- 
tunity of  protecting  their  property,^  and  bringing  offenders  to  jus- 
tice.- 

This  exposition  of  the  law  was  acquiesced  in  by  the  plaintiff's 
counsel ;  but  an  instance  was  pointed  out  in  which  the  defendant  had 
rather  transgressed  the  line  of  investigation  above  laid  down,  where- 
upon the  parties  agreed  to  withdraw  a  juror.^ 


^  See  Brow  v.  Hathaway,  ante,  and  cases  cited  in  note  thereto. 

^See  Coltman,  J.  in  Padmore  v.  Lawrence,  11  A.  &  E.  380  (1840)  ;  "For 
the  sake  of  public  justice  charges  and  communications,  which  would  other- 
wise be  slanderous,  are  protected  if  bona  fide  made  in  the  prosecution  of 
an  inquiry  into  a  suspected  crime" — quoted  by  Morton  J.  in  Eames  v.  Whit- 
taker,  123  Mass.  342  (1877),  p.  344,  with  the  addition  of  the  following: 
"and  for  the  purpose  of  detecting  and  bringing  to  punishment  the  crim- 
inal"; and  see  Lacey,  J.  in  Christman  v.  Christman,  36  111.  App.  567  (1889), 
p.  575;  and  Adam,  J.  in  Lightbody  v.  Gordon,  9  Sc.  Sess.  Cases.  4th  Ser. 
934  (1882),  p.  942,  "People  would  be  prevented  from  doing  their  duty  if 
a  man  who  honestly  believed  that  he  could  give  information  to  the  police 
felt  he  could  do  so  only  with  the  threat  of  an  action  of  damages  hanging 
over  his  head." 

^  Accord:  Padmore  v.  Lawrence,  11  A.  &  E.  380  (1840)  ;  Collins  v.  Cooper, 
19  Times  L.  R.  118  (1902)  ;  Dale  v.  Harris,  109  Mass.  193  (1872)  ;  Christman 
v.  Christman,  36  111.  App.  567  (1889);  and  Chapman  v.  Battle,  124  Ga.  574 
(1905)  ;  and  see  Brow  v.  Hathaway,  ante;  statements  made  by  the  per- 
son against  whom  the  wrong  was  committed  to  the  suspected  person  in  the 
presence  of  third  persons;  Billings  v.  Fairbanks,  136  Mass.  177  (1883).  to 
a  friend  of  the  latter  sent  by  him  to  inquire  the  grounds  on  which  he  had 
been  accused,  Eames  v.  Whittakcr,  123  Mass.  342  (1877),  to  a  friend  in 
informing  him  of  the  crime  and  in  answer  to  the  latter's  inquiries  as  to 
whether  he  suspected  any  one;  Grimes  v.  Coyle,  6  B.  Monr.  301  (Ky.  18451, 
similar  facts;  Johnson  v.  Evans.  3  Esp.  32  (1799),  Dale  v.  Harris,  Eames 
V.  Whittaker,  123  Mass.  342  (1877);  Christman  v.  Christman,  36  111.  App. 
567  (1889),  to  a  constable  in  procuring  the  plaintiff's  arrest  or  in  an  effort 
to  aid  the  investigation  or  to  recover  the  property  stolen.  Shinglemeyer  v. 
Wright,  124  Mich.  230  (1900);  Klinck  v.  Colby,  46  N.  Y.  427  (1871),  state- 
ments in  an  agreement,  made  by  persons  who  believed  themselves  to  have 
been  swindled,  to  share  the  expenses  of  prosecution,  and  see  Jones  v.  Thomas. 
34  W.  R.  104  (1885),  where  the  defendant  had  an  interest  in'  the  statement, 
as  it  was  contained  in  a  paper  providing  for  restitution  of  money,  stolen  from 
his  master  largely  owing  to  his  own  incapacity,  Lightbody  v.  Gordon,  9  Sc. 
Sess.  Cases,  4th  Ser.  934  (1882),  statements  by  third  persons  having  peculiar 
knowledge  of  the  crime  to  police  officers  or  in  the  course  of  inquiry  of 
others  likely  to  have  valuable  information.  In  Miller  v.  Nuckolls,  77 
Ark.  64  (1905),  statements  of  the  defendant's  suspicions  of  the  plain- 
tiff made  to  the  police  for  the  purpose  of  the  investigation  of  the  sup- 
posed crime  and  bringing  the  offender  to  justice  were  held  privileged. 
In  Paris  v.  Starke,  9  Dana  128  (K3'.  1839).  a  member  of  the  community 
in  which  the  crime  was  committed  was  held  privileged  to  express  to  his 
brother  his  belief  in  the  plaintiff's  guilt;  and  in  Harper  v.  Harper,  10  Bush. 
447  (Ky.  1874),  similar  expressions  made  to  persons  not  members  of  his 
family  while  the  community  was  endeavoring  to  discover  the  criminal, 
were  held  privileged;  but  see  Harrison  v.  Eraser,  29  W.  R.  652  (1881), 
where  statements  made  by  a  draper  in  the  course  of  questions  put  to  his 
own  assistant  and  the  assistant  of  ihe  plaintiff,  a  neighboring  draper,  whom 
he  suspected  stealing  from  him.  were  held  by  Lindley.  J.  not  to  be  priv- 
ileged. In  Hancock  v.  Blackwell,  139  Mo.  440  (1897),  and  Bigner  v.  Hodges, 
82   Miss.   215    (1903),   statements   of  belief   in  the  plaintiff's   guilt  made   to 


WASOX    r.    WALTER.  IIOI 


SECTION  3. 


The  Right  to  Publish  Reports  of  Legislative,  Judicial  and 
Public  Proceedings. 


'      '  WASON  r.  WALTER. 
Cour.  of  Queen's  Bench,  1868.    Law  Reports  1868^69,  4  Q.  B.,  73. 

CocKBURN,  C.  J.  This  case  was  argued  a  few  days  since  be- 
fore my  Brothers  Lush,  Hannen  and  Hayes,  and  myself,  and  we 
took  time,  not  to  consider  what  our  judgment  should  be,  for  as  to 
that  our  minds  were  made  up  at  the  close  of  the  argument,  but  be- 
cause, owing  to  the  importance  and  novelty  of  the  point  involved, 
we  thought  it  desirable  that  our  judgment  should  be  reduced  to  writ- 
ing before  it  was  delivered. 

The  main  question  for  our  decision  is,  whether  a  faithful  re- 
port in  a  public  newspaper  of  a  debate  in  either  house  of  parlia- 
ment, containing  matter  disparaging  to  the  character  of  an  individ- 
ual, as  having  been  spoken  in  the  course  of  the  debate,  is  actionable 
at  the  suit  of  the  party  whose  character  has  thus  been  called  in  ques- 
tion.   We  are  of  opinion  that  it  is  not. 

Important  as  the  question  is,  it  comes  now  for  the  first  time  be- 
fore a  court  of  law  for  decision.  Numerous  as  are  the  instances 
in  which  the  conduct  and  character  of  individuals  have  been  called 
in  question  in  parliament  debates  have  been  reported  in  the  public 
journals,  this  is  the  first  instance  in  which  an  action  of  libel  founded- 
on  a  report  of  a  parliamentary  debate  has  come  before  a  court  of 
law.  There  is,  therefore,  a  total  absence  of  direct  authority  to 
guide  us.  There  are,  indeed,  dicta  of  learned  judges  having  refer- 
ence to  the  point  in  question,  but  they  are  conflicting  and  inconclu- 
sive, and,  having  been  unnecessary  to  the  decision  of  the  cases  in 
which  they  were  pronounced,  may  be  said  to  be  extrajudicial.^ 

the  officer  to  whom  the  crime  had  been  reported,  by  one  having  no  interest 
to  protect  and  no  personal  knowledge  of  the  fact,  was  held  not  privileged, 
and  statements  to  a  police  officer  charging  the  plaintiff  with  being  a  whore, 
made  without  intent  to  prevent  or  punish  her  offense,  were  held  not  priv- 
ileged in  Stewart  v.  Major,  17  Wash.  238  (1897).  Statements  by  a  police 
officer  while  investigating  a  crime  are  privileged,  Morton  v.  Knipe,  112 
N.  Y.  S.  451  (1908),  as  are  those  made  in  answer  to  inquiries  by  one  in- 
terested in  discovering  the  wrongdoer  or  recovering  property  stolen,  Kvie 
V.  SeweU,  3  M.  &  W.  297  (1838),  "is,"  said  Parke,  B.,  "a  man's  mouth  to  be 
closed,  when  he  is  asked,  did  he  see  another  person  steal  the  inquirer's 
property?"— accord.  Grimes  v.   Coylc,  6  B.  Monr.  301    (Ky.   1845). 

^The  proceedings  of  a  parliamentary  committee  may  be  reported,  Kane 
V.  Mulvany,  Ir.  R.  2  C.  L.  402  (1868).  A  city  council  is  held  in  Buckstaff  v. 
Hicks,  94  Wis.  34  (1896),  not  to  be  a  legislative  body  whose  proceedings  can 
be  voluntarily  reported  as  news:  see  51  and  52  Vict.,  c.  64,  §§  3  and  4  (1888), 
conferring  "qualified  privilege"  on  fair  and  accurate  reports  of  judicial  pro- 
ceedings, and  of  vestries,  town  councils  and  a  number  of  other  specified  bod- 
ies, and  Wisconsin  Statute  of  1898,  §  4256  a.  In  Trebby  v.  Transcript  Pub- 
lishing Co.,  74  Minn.  84  (1898).  it  was  held  that  no  privilege  attached  to  a 
report  of  a  resolution,  which  had  no  operative  force,  being  a  resolution  con- 
demning the  plaintiff  as  a  traducer  of  the  city  of  St.  Paul ;  but  compare  How- 


1 102  WASOX    V.    AVALTER. 

Several  cases  were  cited  in  the  course  of  the  argument  before 
us,  but  they  turned  for  the  most  part  on  the  question  of  parHamen- 
tary  privilege,  and  therefore  appear  to  us  very  wide  of  the  present 
question.'  The  case  of  Rex  v.  Wright,  8  T.  R.  293,  approaches  near- 
est to  the  one  before  us.  In  that  case  a  committee  of  the  House  of 
Commons  having  made  a  report  imputing  to  Home  Tooke  seditious 
and  revolutionary  designs  after  his  acquittal  on  a  trial  for  high 
treason,  and  the  House  having  ordered  the  report  to  be  printed  for 
the  use  of  its  members,  the  defendant,  a  bookseller  and  publisher, 
printed  and  published  copies  of  the  report.  On  an  application  for  a 
criminal  information  the  Court  refused  the  rule,  apparently  on  the 
ground  that  the  report  of  a  committee  of  the  House  of  Commons, 
approved  of  by  the  House,  being  part  of  the  proceedings  of  parlia- 
ment, could  not  possibly  be  libellous.  Lord  Kenyon,  C.  J.,  says, 
"This  report  was  first  made  by  a  committee  of  the  House  of  Com- 
mons, then  approved  by  the  House  at  large,  and  then  communicated 
to  the  other  House,  and  it  is  now  subjudice;  and  yet  it  is  said  that 
this  is  a  libel  on  the  prosecutor.  It  is  impossible  for  us  to  admit  that 
the  proceeding  of  either  of  the  houses  of  parliament  is  a  libel ;  and 
yet  that  is  to  be  taken  as  the  foundation  of  this  application."  Lord 
Kenyon  and  his  colleagues  appear  to  have  thought  that  a  paper, 
though  containing  matter  reflecting  on  the  character  of  an  individual, 
if  it  formed  part  of  the  proceedings  of  the  House  of  Commons, 
would  be  so  divested  of  all  libellous  character  as  that  a  party  pub- 
lishing it,  even  without  the  House,  would  not  be  responsible  at  law 
for  the  defamatory  matter  it  contained.  If  this  doctrine  could  be 
upheld,  it  would  have  a  manifest  bearing  on  the  present  question,  for 
as  no  speech  made  by  a  member  of  either  house,  however  strongly 
it  may  assail  the  conduct  or  character  of  others,  can  be  held  to  be 
libellous,  it  would  follow,  such  a  speech  being  a  parliamentary  pro- 
ceeding, that  the  publication  of  it  would  not  be  actionable.  But  this 
is  directly  contrary  to  the  decision  in  Rex  v.  Lord  Abingdon,  i  Esp. 
226,  and  Rex  v.  Creevey,  i  M.  &  S.  273,  in  which  the  publication  of 
speeches  made  in  parliament  reflecting  on  the  character  of  individ- 
uals was  held  to  be  actionable.  And  it  must  be  admitted  that  the 
authority  of  the  case  of  Rex  v.  Wright,  8  T.  R.  293,  is  much  shaken, 
not  only  by  the  decision  in  Rex  v.  Creevey,  but  also  by  the  observa- 
tions made  by  Lord  Ellenborough  in  his  judgment  in  the  latter  case. 

Decided  cases  thus  leaving  us  without  authority  on  which  to/ 
proceed  in  the  present  instance,  we  must  have  recourse  to  principle 
in  order  to  arrive  at  a  solution  of  the  question  before  us,  and  for- 
tunately we  have  not  far  to  seek  before  we  find  principles  in  our 
opinion  applicable  to  the  case,  and  which  will  afiford  a  safe  and  sure, 
foundation  for  our  judgment.  It  is  now  well  established  that  faith-| 
ful  and  fair  reports  of  the  proceedings  of  courts  of  justice,  though' 
the  character  of  individuals  may  incidentally  suflfer,  are  privileged^ 
and  that  for  the  publication  of  such  reports  the  publishers^ 
neither  criminally  nor  civilly  responsible: 

land  V.  Town  of  Maynard,  159  Mass.  434  (1893),  publication  by  a  town  of 
report  of  an  investigating  committee  appointed  by  it. 


WASOX    Z'.    WALTER. 


1 103 


The  immunity  thus  afforded  in  respect  of  the  publication  of  the 
proceedings  of  courts  of  justice  rests  upon  a  twofold  ground.  In 
the  English  law  of  libel,  malice  is  said  to  be  the  gist  of  an  action  for 
_defamation.  And  though  it  is  true  by  malice,  as  necessary  to  give  a 
cause  of  action  in  respect  of  a  defamatory  statement,  legal,  and  not 
actual  malice,  is  meant,  while  by  legal  malice,  as  explained  by  Bay- 
ley,  J.,  in  Broniage  v.  Prosscr,  4  B.  &  C.  255  (E.  C.  L.  R.  Vol.  10), 
is  meant  no  more  than  the  wrongful  intention  which  the  law  always 
presumes  as  accompanying  a  wrongful  act  without  any  proof  of 
malice  in  fact,  yet  the  presumption  of  law  may  be  rebutted  by  the 
circumstances  under  which  the  defamatory  matter  has  been  uttered 
or  published,  and,  if  this  should  be  the  case,  though  the  character  of 
the  party  concerned  may  have  suffered,  no  right  of  action  will 
arise. 

It  is  thus  that  in  the  case  of  reports  of  proceedings  of  courts  of 
justice,  though  individuals  may  occasionally  suffer  from  them,  yet, 
as  they  are  published  without  any  reference  to  the  individuals  con- 
cerned, but  solely  to  afford  information  to  the  public  and  for  the 
benefit  of  society,  the  presumption  of  malice  is  rebutted,  and  such 
publications  are  held  to  be  privileged. 

The  other  and  the  broader  principle  on  which  this  exception  to 
the  general  law  of  libel  is  founded  is,  that  the  advantage  to  the  com- 
munity from  publicity  being  given  to  the  proceedings  of  courts  of 
justice  is  so  great,  that  the  occasional  inconvenience  to  individuals 
arising  from  it  must  yield  to  the  general  good.  It  is  true  that  with 
a  view  to  distinguish  the  publication  of  proceedings  in  parliament 
from  that  of  courts  of  justice,  it  has  been  said  that  the  immunity 
accorded  to  the  reports  of  the  proceedings  of  courts  of  justice  is 
grounded  on  the  fact  of  the  courts  being  open  to  the  public,  while 
the  houses  of  parliament  are  not ;  as  als^o  that  by  the  publication  of 
the  proceedings  of  the  courts  the  people  obtain  a  knowledge  of  the 
law  by  which  their  dealings  and  conduct  are  to  be  regulated.  But 
in  our  opinion  the  true  ground  is  that  given  by  Lawrence,  J.,  in  Rex 
V.  Wright,  8  T.  R.  298,  namely,  that  "though  the  publication  of  such 
proceedings  may  be  to  the  disadvantage  of  the  particular  individual 
concerned,  yet__i^  is  of  vast  importance  to  the  public  that  the  pro- 
ceedings of  Courts  of  justice  should  be  universally  known.  The 
general  advantage  to  tTie  country  in  having  these  proceedings  made 
public,  more  than  counterbalances  the  inconvenience  to  the  private 
persons  whose  conduct  may  be  the  subject  of  such  proceedings."  In 
Davison  v.  Duncan,  7  E.  &  B.  231  (E.  C.  L.  R.  vol.  90),  26  L,  J. 
Q.  B.  106,  Lord  Campbell  says,  "A  fair  account  of  what  takes  place 
in  a  court  of  justice  is  privileged.  The  reason  is,  that  the  balance  of 
public  benefit  from  publicity  is  great.  It  is  of  great  consequence  that 
che  public  should  know  what  takes  place  in  court ;  and  the  proceed- 
ings are  under  the  control  of  the  judges.  The  inconvenience,  there- 
fore, arising  from  the  chance  of  injury  to  private  character  is  in- 
finitesimally  small  as  compared  to  the  inconvenience  of  publicity." 
And  Wightman,  J.,  says : — "The  only  foundation  for  the  exception 
is  the  superior  benefit  of  the  publicity  of  judicial  proceedings  which 


I  104  WASOX    7'.    WALTER. 

counterbalances  the  injury  to  individuals,  though  that  at  times  may 
be  great." 

Both  the  principles,  on  which  the  exemption  from  legal  conse- 
quences is  thus  extended  to  the  publication  of  the  proceedings  of 
courts  of  justice,  appear  to  us  to  be  applicable  to  the  case  before  us. 
The  presumption  of  malice  is  negatived  in  the  one  case  as  in  the  other 
by  the  fact  that  the  publication  has  in  view  the  instruction  and  ad- 
vantage of  the  public,  and  has  no  particular  reference  to  the  party 
concerned.  There  is  also  in  the  one  case  as  in  the  other  a  preponder- 
ance of  general  good  over  partial  and  occasional  evil.  We  entirely 
concur  with  Lawrence,  J.,  in  Rex  v.  Wright,  8  T.  R.  298,  that  the 
same  reasons  which  apply  also  to  proceedings  in  parliament.  It 
seems  to  us  impossible  to  doubt  that  it  is  of  paramount  public  and 
national  importance  that  the  proceedings  of  the  houses  of  parlia- 
ment shall  be  communicated  to  the  public,  who  have  the  deepest  in- 
terest in  knowing  what  passes  within  their  walls,  seeing  that  on. 
what  is  said  and  done,  the  welfare  of  the  community  depends. 
Where  would  be  our  confidence  in  the  government  of  the  countr}'  or - 
in  the  legislature  by  which  our  laws  are  framed,  and  to  whose  charge 
the  great  interests  of  the  country  are  committed, — where  would  be 
our  attachment  to  the  constitution  under  which  we  live, — if  the  pro- 
ceedings of  the  great  council  of  the  realm  were  shrouded  m  secrecy 
and  concealed  from  the  knowledge  of  the  nation  ?  How  could  the 
communications  between  the  representatives  of  the  people  and  their 
constituents,  which  are  so  essential  to  the  working  of  the  representa- 
tive system,  be  usefully  carried  on,  if  the  constituencies  were  kept 
in  ignorance  of  what  their  representatives  are  doing?  What  would 
become  of  the  right  of  petitioning  on  all  measures  pending  in  parlia- 
ment, the  undoubted  right  of  the  subject,  if  the  people  are  to  be  kept 
in  ignorance  of  what  is  passing  in  either  house?  Can  any  man  bring 
himself  to  doubt  that  the  publicity  given  in  modern  times  to  what 
passes  in  parliament  is  essential  to  the  maintenance  of  the  relations 
subsisting  between  the  government,  the  legislature,  and  the  country 
at  large  ?  It  may,  no  doubt,  be  said  that,  while  it  may  be  necessary  as 
a  matter  of  national  interest  that  the  proceedings  of  parliament 
should  in  general  be  made  public,  yet  that  debates  in  which  the  char- 
acter of  individuals  is  brought  into  question  ought  to  be  suppressed. 
But  to  this,  in  addition  to  the  difficulty  in  which  parties  publishing 
parliamentary  reports  would  be  placed,  if  this  distinction  were  to  be 
enforced  and  every  debate  had  to  be  critically  scanned  to  see  whether 
it  contained  defamatory  matter,  it  may  be  further  answered  that 
there  is  perhaps  no  subject  in  which  the  public  have  a  deeper  inter- 
est than  in  all  that  relates  to  the  conduct  of  public  servants  of  the 
state, — no  subject  of  parliamentary  discussion  which  more  requires 
to  be  made  known  than  an  inquiry  relating  to  it.  Of  this  no  better 
illustration  could  possibly  be  given  than  is  afforded  by  the  case  be- 
fore us.  _A_distinguished  counsel,  whose  qualification  for  th.e__j.udicial 
bench  had  been  abundantly  tested  by  a  long  career  of  forensic 
C/  eminence,  is  promoted  to  a  high  judicial  otfice,  and  the  profession 
and  the  public  are  satisfied  that  in  a  most  important  post  the  serv- 


WASON    7'.    WALTER.  IIO5 


ices  of  a  most  competent  and  valuable  public  servant  have  been 
secured.  An  individual  comes  forward  and  calls  upon  the  House  of 
Lords  to  take  measures  for  removing  the  judge,  in  all  other  respects 
so  well  qualified  for  his  office,  by  reason  that  on  an  important  occa- 
sion he_had  exhibited  so  total  a  disregard  of  truth  as  to  render  him 
unfit  to  fill  an  office  for  which  a  sense  of  the  solemn  obligations  of 
truth  and  honor  is  an  essential  qualification.  Can  it  be  said  that  such 
a  subject  is  not  one  in  which  the  public  has  a  deep  interest,  and  as 
to  which  it  ought  not  to  be  informed  of  what  passes  in  debate? 
Lastly,  what  greater  anomaly  or  more  flagrant  injustice  could 
present  itself  than  that,  while  from  a  sense  of  the  importance  of 
giving  publicity  to  their  proceedings,  the  houses  of  parliament  not 
only  sanction  the  reporting  of  their  debates,  but  also  take  measures 
for  giving  facility  to  those  who  report  them,  while  every  member  of 
the  educated  portion  of  the  community  from  the  highest  to  the  low- 
est looks  with  eager  interest  to  the  debates  of  either  house,  and  con- 
siders it  a  part  of  the  duty  of  the  public  journals  to  furnish  an  ac- 
count of  what  passes  there,  we  were  to  hold  that  a  party  publishing 
a  parliarnentary  debate  is  to  be  held  liable  to  legal  proceedings  be- 
cause the  conduct  of  a  particular  individual  may  happen  to  be  called 
in  question? 

It  is  to  be  observed  that  the  analogy  between  the  case  of  reports 
of  proceedings  of  courts  of  justice  ai*d  those  of  proceedings  in  par- 
liament being  complete,  all  the  limitations  placed  on  the  one  to  pre- 
vent injustice  to  individuals  will  necessarily  attach  on  the  other;  a 
garbled  or  partial  report,  or  of  detached  parts  of  proceedings,  pub- 
lished with  intent  to  injure  individuals,  will  equally  be  disentitled  to 
protection.  Our  judgment  will  in  no  way  interfere  with  the  de- 
cisions that  the  publication  of  a  single  speech  for  the  purpose  or 
with  the  effect  of  injuring  an  individual  will  be  unlawful,  as  was 
held  in  the  cases  of  Rex  v.  Lord  Abingdon,  i  Esp.  226,  and  Rex  v. 
Cre(*vey,  i  M.  &  S.  273.  At  the  same  time  it  may  be  as  well  to  ob- 
serve that  we  are  disposed  to  agree  with  what  was  said  in  Davison 
V.  Duncan,  7  E.  &  B.  233  (E.  C.  L.  R.  vol.  90),  26  L.  J.  O.  B.  107, 
as  to  such  a  speech  being  privileged  if  bona  fide  published  by  a  mem- 
ber for  the  information  of  his  constituents.  But  whatever  would 
deprive  a  report  of  the  proceedings  in  a  court  of  justice  of  immunity 
will  equally  apply  to  a  report  of  proceedings  in  parliament. 

It  only  remains  to  advert  to  an  argument  urged  against  the 
legality  of  the  publication  of  parliamentary  proceedings,  namely, 
that  such  pul)lication  is  illegal  as  being  in  contravention  of  the  stand- 
ing orders  of  both  houses  of  parliament.  The  fact,  no  doubt,  is, 
that  each  house  of  parliament  does,  by  its  standing  orders,  prohibit 
the  publication  of  its  debates.  But,  practically,  each  house  not  only 
permits,  but  also  sanctions  and  encourages,  the  publication  of  its 
proceedings,  and  actually  gives  every  facility  to  those  who  report 
them.  Individual  members  correct  their  speeches  for  publication  in 
Hansard  or  the  public  journals,  and  in  every  debate  reports  of^  for- 
mer speeches  contained  therein  are  constantly  referred  to.  Collect- 
ively, as  well  as  individually,  the  members  of  both  houses  would 


II06  KIMBALL   r.    POST    rUI'.LISHING    CO. 

deplore  as  a  national  misfortune  tlie  withholding  their  debates  from 
the  country  at  large.  Practically  speaking,  therefore,  it  is  idle  to 
say  that  the  publication  of  parliamentary  proceedings  is  prohibited 
__by  parliament.  The  standing  orders  which  prohibit  it  are  obviously 
maintained  only  to  give  to  each  house  the  control  over  the  publica- 
tion of  its  proceedings,  and  the  power  of  preventing  or  correcting 
any  abuse  of  the  facility  afforded.  Independently  of  the  orders  of 
the  houses,  there  is  nothing  unlawful  in  publishing  reports  of  parlia- 
mentary proceedings.  Practically,  such  publication  is  sanctioned  by 
parliament ;  it  is  essential  to  the  working  of  our  parliamentary  sys- 
tem, and  to  the  welfare  of  the  nation.  Any  argument  founded  on  its 
alleged  illegality  appears  to  us,  therefore,  entirely  to  fail.  Should 
either  house  of  parliament  ever  be  so  ill-advised  as  to  prevent  its 
proceedings  from  being  known  to  the  country — which  certainly 
never  will  be  the  case — any  publication  of  its  debates  made  in  con- 
travention of  its  orders  would  be  a  matter  between  the  house  and  the 
publisher.  For  the  present  purpose,  we  must  treat  such  publication 
as  in  every  respect  lawful,  and  hold  that,  while  honestly  and  faith- 
fully carried  on,  those  who  publish  them  will  be  free  from  legal  re- 
sponsibility, though  the  character  of  individuals  may  incidentally  be 
injuriously  afifected. 


KIMBALL  v.  POST  PUBLISHING  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1908.     199  Mass.  Rep.  248. 

Hammond,  J.  The  articles  of  wdiich  the  plaintiffs  complain 
contained  reports  of  certain  proceedings  in  court  and  also  of  a  meet- 
ing of  stockholders  of  a  corporation  called  the. Burrows  Lighting 
and  Heating  Company. 

The  articles  in  question  contained  among  others  the  following 
statements:  "At  the  office  of  C.  Henry  Kimball,  97  Haverhill  Street, 
officers,  stockholders  and  lawyers  interested  in  the  Burrows  Light- 
ing and  Heating  Company  met  this  morning.  The  affairs  of  the 
Burrows  Lighting  and  Heating  Company  have  been  before  the  pub- 
lic for  a  considerable  time,  are  apparently  in  a  badly  tangled  condi- 
tion. An  order  of  notice  was  recently  issued  by  the  Superior  Court 
against  C.  Henry  Kimball,  William  Galletly  and  the  Burrows  Light- 
ing and  Heating  Company,  ordering  them  to  appear  in  court  on 
Thursday  of  this  week  to  show  cause  why  they  should  be  restrained 
from  holding  any  meeting.  The  charges  were  that  the  holders  of  a 
majority  of  the  capital  stock  of  the  company  had  fraudulently 
secured  control  over  416,000  shares  of  stock." 

By  an  inspection  of  the  bill  in  equity  and  of  the  order  of  the 
court  it  appears  that  the  statement  in  the  articles  w^as  a  fair  report 
of  the  court  proceedings.  And  we  are  further  of  opinion  that  the 
ruling  that  the  evidence  did  not  warrant  a'  fmding  of  malice,  was 
correct.     So  far,  therefore,  as  the  plaintiff  attempted  to  hold  the 


KIMDALL   Z'.    POST    TUBLISHIXG    CO.  I  lOJ 

defendants  as  to  so  much  of  the  articles  as  related  to  the  proceed- 
ings in  court  they  failed  to  make  out  a  case. 

But  there  was  something  more  in  the  articles  than  the  report 
of  the  proceedings  in  court.  There  was  a  report  of  the  meeting  of 
the  stockholders  of  a  private  corporation  ;  and  unless  this  part  of 
the  report  is  also  privileged  the  defense,  so  far  as  resting  upon  that 
ground,  must  fail.  It  is  argued  by  the  defendants  that  "the  public 
is  interested  and  concerned  in  a  meeting  of  stockholders  of  a  cor- 
poration such  as  is  described  in  the"  articles  in  question,  and  that 
reports  of  such  meetings  are  privileged  if  fair  and  made  without 
malice.  But  the  difficulty  with  this  argument  is  that  unless  modified 
by  statutory  provision  the  law  in  England  and  in  this  Commonwealth 
always  has  been  otherwise.  It  is  to  be  noted  that  we  are  not  dealing 
with  what  is  said  at  the  meeting  nor  with  the  person  who  said  it.  No 
doubt  a  stockholder  at  such  a  meeting,  speaking  to  stockholders,  may 
with  impunity  say  things  derogatory  to  an  officer  or  the  manager  of 
the  company  provided  that  what  he  says  be  pertinent  to  the  matter 
in  hand  and  he  speaks  in  good  faith  and  without  malice.  His  justi- 
fication rests. upon  the  fact  that  he  is  speaking  to  the  stockholders 
upon  a  subject  in  which  he  and  they  have  an  interest. 

On  the  contrary  we  are  dealing  with  a  report  in  a  nature  of  the 
repetition  of  the  defamatory  remarks,  which  report  is  made  by  a 
stranger,  having  no  interest  in  the  question,  to  other  strangers,  called 
the  public,  equally  without  interest.  It  is  manifest  that  the  grounds 
for  the  privilege  under  which  the  original  speaker,  the  stockholder, 
is  protected  cannot  serve  the  publisher  of  the  report.  Davison  v. 
Duncan,  y  El.  &  Bl.  229.  De  Crespigny  v.  Wellesley,  5  Bing.  392. 
The  privilege  of  the  publisher,  if  any  he  has,  must  rest  upon  other 
grounds. 

It  is  stated  by  some  authorities  that  by  the  common  law  of 
England  reports  of  judicial  and  parliamentary  proceedings  alone 
were  privileged.  While  it  is  said  by  Shaw,  C.  J.,  in  Barrows  v. 
Bell,  y  Gray,  301,  that  this  statement,  unqualified,  is  too  broad,  still 
subsequent  decisions  seem  to  show  clearly  that  in  England  the  prin- 
ciple of  privilege  is  confined  to  reports  of  judicial  or  quasi  judicial 
bodies.  No  privilege  was  attached  to  the  report  of  other  public  un- 
official meetings.  Hence,  if  in  such  a  case  a  report  containing  any 
defamatory  statement  of  fact  was  printed  in  a  newspaper  the  pro- 
prietor's only  defense  was  that  the  statement  was  true.  Pnrccll  v. 
Sozvler,  i  C.  P.  D.  781  ;  2  C.  P.  D.  215.  See  also  Odgers,  Libel  & 
Slander,  (4th  ed.)  Appendix  B,  and  the  authorities  therein  cited 
Since  the  question  in  this  last  case  the  law  has  been  somewhat  modi- 
fied so  far  as  respects  official  and  other  public  meetings.  But  these 
statutes  have  been  somewhat  strictly  construed,  and  even  now  a  fair 
report  is  not  always  safe.  Ponsford  v.  Financial  Times,  16  T.  L. 
R.  248. 

The  subject  was  quite  freely  discussed  by  Shaw,  C.  J.,  in  Bar- 
rows v.  Bell,  ubi  supra,  and  the  following  language  was  used  (p. 
313)  :  "Whatever  may  be  the  rule  as  adopted  and  practised  on  in 
England,  we  think  that  a  somewhat  larger  liberty  may  be  claimed  in 


iio8 


KIMBALL   V.    POST    PUBLISHING    CO. 


this  country  and  in  this  Commonwealth,  both  for  the  proceedings 
before  all  public  bodies,  and  for  the  publication  of  those  proceedings 
for  the  necessary  information  of  the  people.  So  many  municipal, 
parochial  and  other  public  corporations,  and  so  many  large  volun- 
tary associations  formed  for  almost  every  lawful  purpose  of  benevo- 
lence, business  or  interest,  are  constantly  holding  meetings,  in  their 
nature  public,  and  so  usual  is  it  that  their  proceedings  are  published 
for  general  use  and  information,  that  the  law,  to  adapt  itself  to  this 
necessary  condition  of  society,  must  of  necessity  admit  of  these  pub- 
lic proceedings,  and  a  just  and  proper  publication  of  them,  as  far  as 
it  can  be  done  consistently  with  private  rights.  This  view  of  the  law 
of  libel  in  JMassachusetts  is  recognized,  and  to  some  extent  sanc- 
tioned, by  the  case  of  Cotmnomvealth  v.  Clap,  4  Mass.  163,  and 
many  other  cases."  And  it  was  held  that  the  publication  by  a  mem- 
ber of  the  Massachusetts  Medical  Society  of  a  true  account  of  the 
proceedings  of  that  society  in  the  expulsion  of  another  member  for 
a  cause  within  its  jurisdiction,  and  of  the  result  of  certain  suits  sub- 
sequently brought  by  him  against  the  society  and  its  members  on 
account  of  such  expulsion,  is  privileged. 

The  above  language  of  the  court,  however  liberal  its  construc- 
tion, is  not  to  be  understood  as  applying  to  strictly  private  meetings. 
It  applies  at  the  most  only  to  meetings  public  in  their  nature,  or 
where  the  proceedings  concern  the  public.  In  that  case  it  was  said 
that  the  charter  of  the  Massachusetts  Medical  Society  "invested  the 
society,  their  members  and  licentiates,  with  large  powers  and  privi- 
leges, in  regulating  the  important  public  interest  of  the  practice  of 
medicine  and  surgery,  enabled  them  to  prescribe  a  course  of  studies, 
to  examine  candidates  in  regard  to  their  qualifications  for  practice, 
and  give  letters  testimonial  to  those  who  might  be  found  duly  quali- 
fied." It  was  also  stated  that  it  appeared  by  the  acts  incorporating 
this  society  that  it  was  regarded  by  the  Legislature  "as  a  public  in- 
stitution, by  the  action  of  which  the  public  would  be  deeply  affected 
in  one  of  its  important  public  interests,  the  health  of  the  people."  It 
was  further  said  that  the  proceedings  of  which  the  report  was  made 
"might  be  rightly  characterized,  as  in  the  case  of  Farnszvorth  v. 
Storrs,  (5  Cush.  412)  as  quasi  judicial."  And  it  was  upon  the  lat- 
ter ground  that  the  communication  was  adjudged  to  be  privileged.^ 
The  case  before  us  is  entirely  different.  The  meeting  was  sim- 
ply that  of  a  private  corporation  invested  with  no  privileges  and 
owing  no  special  duties  to  the  public.     It  was  an  ordinary  business 


^Accord:  Allhutt  v.  General  Medical  Education  Society,  L.  R.  23  Q.  B. 
D.  400  (1889).  in  both  cases  duties  and  powers  whose  performance  and  exer- 
cise were  essential  to  the  protection  of  the  public  as  well  as  the  profession, 
had  been  entrusted  to  the  association  involving  the  exercise  of  a  quasi  judi- 
cial function.  A  fair  report  in  a  public  newspaper  of  a  trial  by  an  ecclesi- 
astical tribunal  is,  in  Lothrop  v.  Adams,  133  Ivlass.  471  (1882),  semble,  said 
to  be  privileged,  though  no  such  duties  or  powers  had  been  entrusted  to  it, 
and  in  Rabb  v.  Treveh'an,  122  La.  174  (1908),  a  similar  report  of  an  ex  parte 
trial  of  a  bookmaker,  by  a  racing  association  of  which  he  was  a  member  and 
which  resulted  in  his  being  ruled  off  all  race  tracks  under  its  control,  was 
held  privileged. 


METCALF   V.    TIMES    PUBLISHING    CO.  IIO9 

meeting.  \\"hether  any  member  was  in  fraudulent  possession  of 
stock,  or  had  mismanaged  the  affairs  of  the  corporation,  or  whether 
the  plaintiff's  were  unfit  to  continue  as  officers,  or  the  corporation 
had  been  made  bankrupt,  were  matters  with  which  the  public  were  in 
no  way  concerned.  The  meeting  was.  for  the  stockholders  alone. 
Only  they  or  their  duly  constituted  agents  were  entitled  to  be  pres- 
ent. The  meeting  was  neither  public  nor  for  a  public  purpose.  As 
well  might  it  be  said  that  a  private  conference  between  the  members 
of  a  partnership  on  partnership  matters  was  a  public  meeting.  For 
the  purposes  of  the  meeting  it  might  have  been  necessary  for  charges 
to  be  made  by  one  stockholder  against  another  stockholder  or  an 
officer,  and  that  the  charges  should  be  discussed  and  their  truth  or 
falsity  determined ;  and  so  far  the  actors  were  well  within  the  privi- 
lege. They  had  a  duty  to  perform  in  a  matter  in  which  all  were  in- 
terested. But  for  obvious  reasons  hereinbefore  stated  the  mantle 
of  protection  cannot  cover  him  who,  having  no  interest,  repeats  the 
defamatory  words  to  others  also  without  interest.  And  in  this  mat- 
ter the  conductor  of  a  newspaper  stands  no  better  than  any  other 
person.  As  was  said  in  Sheckel  v.  Jackson,  lo  Cush.  25,  26,  27,  in 
a  reply  to  a  contention  that  conductors  of  the  public  press  are  en- 
titled peculiar  indulgence  and  have  espenal  rights  and  privileges, 
"the  law  recognizes  no  such  peculiar  rights,  privileges,  or  claims  to 
indulgence.  They  have  no  rights  but  such  as  are  common  to  all. 
They  have  just  the  same  rights  that  the  rest  of  the  community  have, 
and  no  more."  These  words,  although  spoken  more  than  half  a 
century  ago,  state  the  law  as  it  exists  to-day,  except  so  far  as  it  has 
been  modified  by  statute,  and  there  has  been  no  statute  material  to 
the  question  before  us.  The  result  is  that  the  articles  were  not 
privileged  so  far  as  they  reported  the  proceedings  of  the  corpora- 
tion. 

It  is  argued  by  the  defendants  that  inasmuch  as  the  charge  in 
the  bill  in  equity  was  the  same  as  that  made  at  the  meeting,  namely, 
that  the  majority  of  the  stock  was  in  the  fraudulent  possession  of  the 
plaintiffs,  it  will  be  impossible  for  the  plaintiffs  to  contend  that  any 
alleged  damage  was  suffered  from  the  one  rather  than  the  other, 
and  therefore  if  one  report  is  privileged  the  action  cannot  be  main- 
tained. This  is  untenable.  Even  if  the  charge  in  substance  is  the 
same,  it  is  evident  that  a  charge  made  in  a  bill  in  equity  filed  in  court 
may  not  be  regarded  as  so  serious  a  matter  as  a  charge  made  by 
one's  business  associates  in  a  business  meeting.  The  difficulty  of 
separating  the  damages  gives  no  immunity  to  the  defendants. 

Exceptions  sustained. 


METCALF  V.   TIMES   PUBLISHING  CO. 

Appellate  Division  of  the  Supreme  Court  of  Rhode  Island,  1898.    20  R.  I.  674. 

Trespass  on  the  case  for  libel.     Heard  on  demurrer  to  defend- 
ant's special  plea  in  justification. 

Stiness,  J.     The  plaintiff'  sues  to  recover  damages  for  a  libel 


mo  METCALF    V.    TIMES    rUBLISIiING    CO. 

alleged  to  have  been  printed  in  "The  Evening  Times."  a  newspaper 
in  Pawtucket,  published  by  the  defendants.  The  declaration  sets 
out  that  upon  the  filing  of  a  bill  in  equity  by  Annie  Campbell  against 
the  plaintiff  and  other  associates  in  business,  charging  them  with 
having  conspired  to  defraud  her  deceased  husband,  Duncan  H. 
Campbell,  of  certain  letters  patent  of  this  and  foreign  countries, 
and,  upon  the  order  by  a  justice  for  citation  an  ex  parte  preliminary 
injunction,  until  hearing,  the  defendants  published  the  charges  of 
.  fraud,  to  the  damage  of  the  plaintiff. 

The  defendants  plead  specially  that  the  said  Evening  Times  was 
a  public  newspaper ;  that  they  published  said  matters  because  they 
believed  them  to  contain  information  which  it  was  important  for 
the  public  to  know ;  that  said  matters  were  a  part  of  the  public 
records  of  this  court,  upon  which  there  had  been  judicial  action, 
which,  denying  all  malicious  intent,  it  was  lawful  for  them  to  do. 
The  plaintiff'  demurs  to  the  plea. 

The  question  of  privileged  communications  is  one  that  has  been 
much  considered,  and  certain  lines  may  now  be  said  to  be  well  estab- 
lished. 

In  The  King  v.  Wright,  8  D.  &  E.  293,  in  1799,  which  was  an 
application  for  a  criminal  information  for  libel  growing  out  of  the 
Home  Tooke  case,  it  was  held  that  a  report  of  the  House  of  Com- 
mons could  be  published,  even  though  it  reflected  on  the  charac- 
ter of  an  individual. 

Hoare  v.  Silverlock,  9  C.  B.  20,  was  to  the  eft'ect  that  a  full  and 
impartial  report  of  a  trial  in  a  court  of  justice  could  be  published.^ 
Some  stress  was  laid  upon  the  distinction  between  a  full  trial  and  an 
ex  parte  proceeding,  which,  however,  was  not  necessary  to  the 
decision  of  this  case. 

Davison  v.  Duncan,  7  E.  &  B.  229,  held  that  a  fair  report  of 
defamatory  matter  uttered  in  a  public  meeting  was  not  privileged. 

McGregor  v.  Thzvaites,  3  B.  &  C.  24  (10  E.  C.  L.  6),  1824,  held 
that  proceedings  before  a  magistrate,  not  judicial  but  advisory,  were 
not  privileged,  and  Duncan  v.  Thzvaites,  3  B.  &  C.  556  ( 10  E.  C.  L. 
179),  extended  the  rule  to  proceedings  which  took  place  in  the 
course  of  preliminary  inquiry  before  a  magistrate. 

Lewis  V.  Levy,  E.  B.  &  E.  535,  questioned  the  decision  in  Diin- 


^ Accord:  McClure  v.  Reviczu  Publishing  Co.,  38  Wash.  160  (1905); 
American  Publishing  Co.  v.  Gamble,  115  Tenn.  663  (1905),  unless  the  publica- 
tion is  prohibited  by  the  court  or  the  subject-matter  is  unfit  for  publication, 
American  Publishing  Co.  v.  Gamble,  semble;  see  Rex  v.  Clement,  4  B.  &  Aid. 
218  (1821)  ;  Rex  v.  Mary  Carlilc,  3  B.  &  Aid.  167  (1819),  and  Steele  v.  Bran- 
nan,  U  R.  7C.  P.  261  (i872). 

See  as  to  the  right  to  report  the  proceedings  of  a  body  appointed  by  con- 
gress, a  state  legislature,  or  a  municipal  legislative  body,  to  investigate  mat- 
ters of  public  interest,  Terrv  v.  Felloivs.  21  La.  Ann.  375  (1869)  ;  Meteye  v. 
Times-Democrat,  47  La.  Ann.  824  (1895)  ;  and  see  Belo  &  Co.  v.  Wren,  63 
Tex.  686  (1884). 

The  privilege  is  not  peculiar  to  newspapers,  any  one  may  fairly  report  in 
writing  or  print,  or  repeat  verbally,  any  judicial  proceedings.  Butt,  L.  J.,  in 
Milissich  v.  Lloyds,  46  L.  J.  C.  P.  404  (1877),  p.  407;  Salmon  v.  Isaac,  2a 
L.  T.  885  (1869). 


METCALF   v.    TIMES    PUBLISHING   CO.  II 1 1 

can  V.  Thzvaites,  and  although  the  case  was  understood  to  hold  that 
the  privilege  of  a  fair  report  extended  to  proceedings  taking  place 
publicly  before  a  magistrate  on  the  preliminary  investigation  of  a 
criminal  charge,  terminating  in  the  discharge  of  the  prisoner,  yet  the 
court  did  not  expressly  decide  that  question. 

Reg.  V.  Gray,  lo  Cox  Crim.  Cas.  184,  carried  the  rule  to  this 
extent,  but  the  court  was  not  unanimous  in  the  decision. 

In  Usil  V.  Hales,  47  L.  J.  (1878)  323,  Lord  Coleridge,  C.  J., 
fully  adopted  the  apparent  rule  of  Lezvis  v.  Levy,  and  Lopes,  J., 
concurring,  said :  "There  are  authorities  which,  until  they  are  care- 
fully examined,  would  seem  to  support  the  contention  that  an  ex 
parte  proceeding  in  courts  is  not  privileged.  So  far  as  I  can  ascer- 
tain, these  are  cases  where  the  proceeding  was  preliminary,  and 
where  there  was  no  final  determination  at  the  time  of  the  alleged 
libelous  report."  In  Wason  v.  Walter,  L.  R.  4  O.  B.  'jt,,  the  dictum 
of  Cockburn,  C.  J.,  goes  further,  that  fair  reports  of  all  ex  parte 
proceedings  are  privileged. 

Ryalls  V.  Leader,  L.  R.  i  Exch.  296,  held  that  the  examination 
of  a  debtor  in  custody,  before  a  registrar  ip  bankruptcy,  was  a  pro- 
ceeding before  a  public  court,  and  hence  privileged. 

In  Kimber  v.  The  Press  Association,  i  O.  B.  Div.  (1893)  6~i. 
the  court  went  to  the  full  length  of  holding  that  the  publication  of  a 
fair  report  of  proceedings  held  in  open  court,  though  preliminary 
and  ex  parte,  is  privileged.  This  case  is  quite  remarkable  from  sev- 
eral facts.  It  was  an  application  to  magistrates,  specially  called  to- 
gether by  the  clerk,  for  a  summons  to  one  charged  with  perjury,  and 
no  evidence  was  given  under  oath.  The  application  was  granted, 
and  one  of  the  principal  questions  argued  was  whether  it  was  an 
open  court.  It  was  also  held  that  the  matter  was  one  for  final  de- 
termination, because  if  it  was  refused  it  would  be  final,  and  if  it  was 
granted  there  would  be  a  further  inquiry  and  the  matter  might  go 
on  to  trial. 

Following  the  outline  of  leading  decisions,  in  which  there  has 
been  a  gradual  progress,  the  law  of  England  seems  now  to  be  that  a 
full  and  fair  report  of  proceedings  in  an  open  court,  upon  a  matter 
standing  for  final  decision,  even  though  the  inquiry  may  be  prelimi- 
nary and  ex  parte,  is  privileged.  See  opinion  of  Kay,  L.  J.,  in  Kim- 
ber V.  Press  Association. 

In  this  country  the  law  has  been  declared  in  very  much  the 
same  way.  In  Cincinnati  Gazette  v.  Timberlake,  10  Ohio  St.  548, 
i860,  it  was  held  that  privilege  does  not  extend  to  the  publication  of 
preliminary  proceedings  merely,  which  are  of  a  purely  ex  parte 
character.    The  opinion,  however,  follows  the  earlier  English  cases. 

Barber  v.  St.  Louis  Dispatch,  3  ]\lo.  App.  377,  laid  down  this 
rule :  "Where  a  court  or  public  magistrate  is  sitting  publicly,  a  fair 
account  of  the  whole  proceedings,  uncolored  by  defamatory  com- 
ment or  insinuation,  is  a  privileged  communication,  whether  the  pro- 
ceedings are  on  a  trial  or  on  a  preliminary  and  ex  parte  hearing.  But 
the  very  terms  of  the  rule  imply  that  there  must  be  a  hearing  of  some 
kind.    In  order  that  the  ex  parte  nature  of  the  proceeding  may  not 


1 1 12  METCALF   v.    TIMES    PUBLISHING    CO. 

destroy  the  privilege — to  prevent  such  a  result — there  must  be  ac 
least  so  much  of  a  public  investigation  as  is  implied  in  a  submission 
to  the  judicial  mind,  with  a  view  to  judicial  action."  In  this  case  a 
petition  for  divorce  had  been  filed,  but  it  had  not  been  presented  to 
a  court  at  any  sitting,  with  a  view  to  judicial  action. 

In  Park  v.  Detroit  Free  Press,  J2  Mich.  560,  it  was  held  that 
the  publication  of  the  pleadings  or  other  contents  of  the  files  in  a 
private  suit  before  hearing,  or  action  in  open  court,  is  not  privi- 
leged.^ 

McBee  v.  Fulton,  47  Md.  403,  held  that  an  examination  before 
a  magistrate,  whether  the  accused  permits  them  to  be  ex  parte  or 
whether  he  makes  defence,  is  privileged,  upon  the  ground  that  it  is 
a  proceeding  before  a  public  court  of  justice. 

In  New  York,  a  statute  of  i§54,  limiting  actions  for  the  publi- 
cation of  a  fair  and  true  report  of  judicial  proceedings  to  cases  of 
malice,  was  held  to  be  declaratory  of  the  common  law,  in  Ackerman 
v.  Jones,  37  N.  Y.  Super.  42,  and  that  under  the  statute  an  ex  parte 
affidavit  presented  to  a  police  magistrate  to  obtain  a  search  warrant 
was  privileged. 

Cowley  V.  Pulsifer,  137  Mass.  392,  contains  a  full  review  of 
this  subject  by  Mr.  Justice  Holmes.  It  was  an  action  for  libel  in 
publishing  a  petition  for  the  removal  of  an  attorney  from  the  bar, 
which  had  not  been  presented  to  the  court.  The  question,  there- 
fore, was  quite  dififerent  from  the  one  before  us,  but  the  court 
assumes  the  rule,  admitted  by  the  plaintiff  in  that  case,  that  the 
privilege  attaches  to  fair  reports  of  judicial  proceedings,  even  if 
preliminary  and  ex  parte. 

The  rule,  as  thus  stated,  seems  now  to  be  settled  as  the  law, 
both  in  England  and  this  country,  and  it  makes  a  clear  line  of  dis- 
tinction between  publications  which  are  lawful  and  those  which  are 
not. 

It  gives  no  license  to  publish  libelous  matter  simply  because  it 
is  found  in  the  files  of  a  court.  As  a  publisher  of  news  and  items  of 
public  importance  the  press  should  have  the  freest  scope  ;  but  as  a 
scandal-monger  it  should  be  held  to  the  most  rigid  limitation.     If  a 


'Accord:  Byers  v.  Meridian  Printing  Co.,  84  Ohio  St.  408  (1911),  and 
cases  cited  therein,  and  in  the  note  thereto  in  38  L.  R.  A.  (N.  S.)  913;  and 
Xixon  V.  Dispatch  Printing  Co.,  101  Minn.  309  (1907).  12  L.  R.  A.  (N.  S.) 
188  with  note,  compare  Thompson  v.  Powiiing,  15  Nev.  195  (1880). 

An  accurate  transcript  of  court  records  relating  to  any  judicial  proceed- 
ings is  privileged,  Andrews  v.  Nott  Boiver,  L.  R.  1895,  1  Q.  B.  888,  p.  896; 
Pleming  v.  Newton,  1  H.  L.  C.  363  (1848),  even  though  the  record  is  itself 
inaccurate.  McCabe  v.  Joynt,  1901,  2  Ir.  R.  115,  though  a  belated  transcript 
of  a  record  of  judicial  action  since  reversed,  or  the  publication  of  a  judgment 
as  existing  which  has  been  satisfied,  is  not  privileged,  McNally  v.  Oldham, 
16  Ir.  C.  L.  R.  298  (1863)  ;  Williams  v.  Smith,  L.  R.  22  Q.  B.  D.  134  (1888). 
But  one  reporting  such  records  does  so  at  his  peril  and  the  transcript  is  not 
privileged  if  inaccurate,  Stiibbs  v.  Russell,  L.  R.  A.  913  A.  C.  38;  Ingram  v. 
Reed,  5  Pa.  S.  C.  550  (1897).  As  to  the  right  to  publish  transcripts  from 
other  records  bv  statute  open  to  the  public,  compare  Reiss  v.  Perry,  11  Times 
L.  R.  373  (1895),  64  L.  J.  Q.  B.  566,  with  Cof^'wrs  v.  Picblishing  Co..  183 
Mass.  474  (1903). 


METCALF   v.    TIMES    PUBLISHING    CO.  III3 

man  has  not  the  right  to  go  around  to  tell  of  charges  made  by  one 
against  another,  much  less  should  a  newspaper  have  the  right  to 
spread  it  broadcast  and  in  enduring  form.  It  is  necessary  to  the 
ends  of  justice  that  a  party  should  be  allowed  to  make  his  charges 
against  another,  for  adjudication,  even  though  they  may  be  of  a 
libelous  character,  and  as  such  they  are  privileged,  the  injured  party 
having  a  remedy  for  malicious  prosecution  w^hen  they  are  made 
maliciously  or  without  probable  cause.  But  the  right  of  a  party  to 
make  charges  gives  no  right  to  others  to  spread  them.  When  the 
charges  come  up  for  adjudication,  however,  although  their  publica- 
tion may  be  as  harmful  and  distressing  to  the  person  accused  as  if 
they  had  been  published  before  their  consideration  by  a  court,  a  dif- 
ferent rule  applies.  Individual  feelings  are  no  longer  considered,  for 
the  reason,  as  stated  by  Judge  Holmes :  "It  is  desirable  that  the  trial 
of  causes  should  take  place  under  the  public  eye,  not  because  the 
controversies  of  one  citizen  with  another  are  of  public  concern,  but 
because  it  is  of  the  highest  moment  that  those  who  administer  jus- 
tice should  always  act  under  the  sense  of  public  responsibility,  and 
that  every  citizen  should  be  able  to  satisfy  himself  with  his  own  eyes 
as  to  the  mode  in  which  a  public  duty  is  performed." 

Accepting  and  applying  the  rule,  as  we  understand  it  to  be,  two 
questions  arise :  First,  does  the  plea  set  forth  a  proceeding  before  a 
court,  and,  second,  does  it  aver  to  be  a  full  and  fair  report. 

As  to  the  first  question,  it  sets  out  an  application  in  chambers, 
upon  a  motion  for  an  ex  parte  injunction  before  and  until  a  hearing. 
Ordinarily  the  only  consideration  which  is,  or  can  be,  given  to  it  is 
whether  the  bill  states  an  exigency  upon  its  face  sufficient  to  warrant 
an  order  to  hold  property  in  statu  quo,  until  a  hearing  can  be  had. 
This  is,  indeed,  a  judicial  matter,  but  of  the  most  insignificant  sort 
and  verv  near  to  the  border  line.  It  is  a  matter  submitted  to  a 
judge,  and  he  acts  upon  it.  It  is  within  the  rule  and  the  cases  which 
we  have  referred  to,  notably  that  of  Kimhcr  v.  F'ress  Association, 
supra.  If  this  was  not  judicial  action  it  would  be  difficult  to  say 
what  would  be,  short  of  a  full  trial  of  the  case.  Although  the  mo- 
tion was  in  chambers,  still,  under  our  practice,  as  all  such  motions 
and  interlocutory  orders  are  made  in  chambers,  technically  we  can- 
not say  that  it  was  not  in  court.  The  statutes  provide  for  such  mo- 
tions to  be  made  to  the  court,  and  the  provisions  about  the  court  "in 
chambers"  are  simply  to  distinguish  such  proceedings  from  those  of 
the  Appellate  Division  sitting  in  banc.  We  therefore  decide  that  the 
plea  sets  out  a  sufficient  statement  of  a  proceeding  in  the  court. ^ 

As  to  the  second  question,  to  bring  the  plea  within  the  rule  of 

^Accord:  Beiser  v.  Scripps-McRae  Publishing  Co.,  113  Ky.  383  (1902), 
application  before  a  Justice  of  the  Peace  for  permission  to  make  an  affidavit 
for  the  purpose  of  instituting  a  prosecution  held  to  be  a  judicial  proceedmg, 
and  this  though  the  matter  is  not  within  the  jurisdiction  of  the  justice.  Lcc 
V.  Union  Publishing  Co.,  209  X.  Y.  245  (1913). 

A  mere  complaint  to  the  police  is  not  a  judicial  proceeding,  Jastrccwbshi 
V.  Mar.vhauscn,  120  Mich.  677  (1899).  and  see  McCabc  v.  Cauldwell,  18  Abb. 
Prac.  377  (N.  Y.  1865),  to  the  effect  that  a  report  of  proceedings  before  a 
grand  jurj^  are  not  privileged.     A  report  of  what  was  done  and  said  at  an 


III4 


METCALF   v.    TIMES    PUBLISHING    CO. 


full  and  fair  report,  the  plea  is  bad  upon  its  face.  It  avers  that 
what  is  published  was  only  a  part  of  the  bill,  and  this  part,  so  far  as 
shown,  was  only  the  four  paragraphs  charging  fraud.  It  does  not 
aver  that  the  defendants  gave  a  full  and  fair  report,  even  in  sub- 
stance, of  the  allegations  and  facts  set  out  in  the  bill.  The  plea 
rests  upon  the  fact  that,  as  the  bill  had  been  before  a  judge  in  a 
judicial  proceeding,  it  was  a  justification  in  publishing  a  part  of  it. 
That  is  not  enough.  If  a  garbled  report  of  a  trial,  which  may  re- 
sult in  a  vindication  of  one  accused,  is  not  privileged,  much  less 
should  unfair  extracts  from  pleadings  be  privileged.  This  doc- 
trine is  strongly  set  forth  in  caustic  words  by  Endlich,  J.,  in  Com.  v. 
CosteUo,  I  Pa.  Dist.  Rep.  745-752 :  'T  prefer  to  rely  upon  the  propo- 
sition, which  seems  to  me  incontestable,  that,  whether  the  proceeding 
be  in  a  court  of  record  or  not,  finished  or  unfinished,  ex  parte  or 

execution  is  not  privileged,  Sanford  v.  Bennett,  24  X.  Y.  20  (1861). 

Where  the  proceedings  last  more  than  one  day,  they  may  be  reported 
from  day  to  day  as  they  progress,  Lewis  v.  Levy,  E.  B.  &  E.  537  (1858).  But 
if  the  proceedings  are  finally  concluded,  a  report  which  states  only  the  accu- 
sation and  evidence  against  the  accused  and  does  not  mention  his  subsequent 
triumphant  acquittal,  is  not  privileged,  Grimwade  v.  Dicks  et  al.,  2  Times 
L.  R.  627  (1886). 

The  report  need  not  be  verbatim,  it  is  enough  if  it  is  substantially  fair 
and  accurate,  Campbell,  C.  J.  in  Andrews  v.  Chapman,  3  C.  &  K.  286  (1853)  ; 
Connor  v.  Standard  Publishing  Co.,  183  Mass.  474  (1903)  ;  Boogher  v.  Knapp, 
97  Mo.  122  (1888);  D'Auxy  v.  Star  Co.,  64  N.  Y.  S.  283  (1900),  and  see 
JViUman  V.  Press  Co.,  49  App.  Div.  35  (1900  N.  Y.). 

Only  the  report  of  the  trial  is  privileged,  Stanley  v.  Webb,  6  N.  Y.  Super. 
Ct.  (4  Sandf.)  21  (1850);  Post  Publishing  Co.  v.  Moloney.  50  Ohio  St.  71 
(1893);  Moore  v.  Leader  Pub.  Co.,  8  Pa.  S.  C.  152  (1898),  and  unsworn 
statements  bv  bvstanders  are  no  part  of  the  proceedings,  Lxnani  v.  Cowing,  6 
L.  R.  Ir.  259" (1880)  ;  and  see  McGee  v.  Kinsey,  1  Phila.  326  (Pa.  1852).  Com- 
ment may  not  be  interspersed,  if  any  is  made,  it  should  be  kept  separate, 
Campbell,  C.  J.,  in  Andrews  v.  Chapman,  supra.  And  the  report  should  ex- 
press no  opinion  on  the  conduct,  guilt  or  motives  of  the  parties,  witnesses. 
Court  or  counsel,  Rex  v.  Fisher,  2  Camp.  563  (1811)  ;  Lewis  v.  Walter,  4  B. 
&  Aid.  605  (1821)  ;  Cass  v.  New  Olreans  Times,  27  La.  Ann.  214  (1875)  ; 
Scripps  V.  Reillv,  38  ]\Iich.  10  (1878)  ;  and  see  Brown  v.  Providence  Telegram, 
25  R.  I.  117  (1903),  and  Ptisfcr  v.  Sentinel  Co.,  108  Wis.  572  (1901)  ;  nor  may 
it  draw  untrue  inferences,  Hayes  v.  Press  Co.,  127  Pa.  St.  642  (1889),  a  state- 
ment of  a  judgment  entered  against  plaintiff,  published  under  the  headline 
"Merchant  Embarrassed."  Nor  may  it  impute  perjury  to  a  party  or  witness, 
Stiles  v.  Nokes,  7  East  493  (1806);  Rosenberg  v.  XesBitt,  14  N.  Y.  St.  248 
(1888)  ;  Godshalk  v.  Metzgar,2Z  W.  N.  C  541  (Pa.  1889).  Conspicuous  head- 
lines are  permissible  if  a  fair  index  to  the  report.  Lawyers  Co-operative  Pub- 
lishing Co.  V.  JVest  Publishing  Co.,  32  App.  Div.  585  (1898  N.  Y.),  but  not  if 
misleading,  Haves  v.  Press  Co.,  supra,  or  if  thev  assume  the  guilt  of  a  per- 
son accused.  Dorr  v.  United  States,  195  U.  S.  138  (1904)  ;  Pittock  v.  O'Neill, 
63  Pa.  St.  253  (1869)  ;  and  a  fair  and  accurate  report  does  not  lose  its  privi- 
lege because  accompanied  bv  true  information  as  to  the  parties  involved, 
Johns  V.  Press  Pub.  Co.,  61  X.  Y.  Super.  Ct.  207  (1892). 

When  the  report  stated  that  a  certain  fact  "appeared  in  evidence"  when  it 
was  merely  asserted  in  a  speech  by  counsel,  it  was  held  a  matter  for  the  jury 
to  determine  whether  the  report  was  a  fair  one,  Ashmore  v.  Borthwick,  2 
Times  L.  R.  113-209  (1885),  and  see  Hutchinson  v.  Robinson,  21  X.  S.  Wales 
L.  R.  130  (1900). 

The  burden  of  proving  the  report  to  be  fair  and  accurate  is  on  the  de- 
fendant, the  burden  of  showing  it  was  published  maliciously  is  on  the 
plaintiff.  Lord  Esher  in  Kimbcr  v.  Press  Assn.,  L.  R.  1893,  1  Q.  B.  65,  p.  71. 


SWEET   V.    POST    PUBLISHING    CO.  Ill 5 

Otherwise,  no  individual  and  no  newspaper  has  the  right  to  pubHsh 
mere  arbitrary  selections  consisting  of  those  portions  which  impute 
crime  or  moral  turpitude  to,  or  cast  ridicule  or  odium  upon,  the 
party  to  whom  they  refer,  and  commending  themselves  only  by 
what  is  sometimes  called  spiciness,  but  is  more  properly  denominated 
filth,  or  by  reason  of  the  fact  that  they  tickle  the  morbid  appetite  of 
perverted  human  nature,  which  delights  in  the  spectacle  of  another's 
disgrace."* 

Upon  this  ground,  therefore,  the  demurrer  to  the  plea  is  sus- 
tained, and  the  case  will  be  remitted  to  the  Common  Pleas  Division 
for  further  proceedings. 


SWEET  V.  POST  PUBLISHING  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1913.    215  Mass.  450. 

Morton,  J.  This  is  an  action  of  tort  to  recover  damages  for 
the  publication  of  an  alleged  libel  upon  thfe  plaintiff,  an  attorney  at 
law,  in  the  "Boston  Post"  of  August  13,  1907,  a  newspaper  published 
by  the  defendant.  The  article  complained  of  purported  to  give  the 
names  of  six  persons  who  had  been  indicted  by  the  Suffolk  County 
grand  jury  for  conspiracy  to  defraud  persons  unknown  and  circum- 
stances connected  with  their  arrest.  Amongst  the  names  given  as 
those  of  the  persons  indicted  and  arrested  was  that  of  the  plaintiff. 
There  was  also  a  paragraph  in  the  same  article  giving  particulars 
as  to  the  age,  residence  and  profession  of  "Mr.  Sweet,"  which  was 
descriptive  of  the  plaintiff  in  the  particulars  mentioned.  The  article 
was  printed  in  what  may  be  fairly  described  as  a  highly  sensational 
manner.  The  declaration  was  in  three  counts.  The  first  count  was 
in  statutory  form.  The  second  and  third  counts  averred  that  the 
plaintiff  was  an  attorney  at  law  and  that  the  alleged  libel  had  greatly 
injured  him  in  his  reputation  and  had  caused  him  great  loss  and 
damage  in  his  profession.  The  answer  admitted  publication  but  de- 
nied any  malice,  and  set  up  in  substance  that  the  article  was  pub- 
lished with  reasonable  care,  on  a  privileged  occasion,  about  another 
person  whose  name  was  similar  to  that  of  the  plaintiff,  but  that  in 
spite  of  such  a  care  a  mistake  occurred  and  that  on  discovering  the 
mistake  the  defendant  promptly  published  a  retraction. 

There  was  a  verdict  for  the  plaintiff  and  the  case  is  here  on 
exceptions  by  the  defendant  to  a  matter  of  evidence  and  to  the  re- 
fusal of  the  presiding  judge  to  give  certain  rulings  asked  for  and  to 
certain  instructions  that  were  given. 

*  Accord:  Saunders  v.  Mills,  6  Bing.  213  (1829)  ;  Lezvis  v.  JValter,  4  B.  & 
Aid.  605  (1821)  ;  Piucro  v.  Goodlake,  15  L.  T.  676  (1867),  the  whole  or  part 
of  the  evidence  not  given. 

But  the  summing  up  of  the  judge  may  always  be  published  separately — 
it  is  a  distinct  part  of  the  proceedings  not  affected  by  others — and  is  pre- 
sumably a  fair  summary,  Milissich  v.  Llovds,  46  L.  J.  C.  P.  404,  36  L.  T.  423 
(1877),  McDougall  v.  Knight,  L.  R.  17  Q.  B.  Div.  636,  L.  R.  14  App.  Cases 
194  (1889). 


IIl6  SWEET   V.    POST    PUr>LISIiING    CO. 

It  was  stated  at  the  trial  by  the  plaintiff's  attorney  that  no 
claim  of  express  malice  was  made. 

The  principal  contention  of  the  defendant  is  that  the  occasion 
was  one  of  privilege  or  qualified  privilege,  and  that  it  is  not  liable 
for  the  consequences  of  a  mistake  honestly  made  in  a  bona  fide  at- 
tempt, in  the  exercise  of  reasonable  care  and  diligence,  to  get  at  the 
facts  for  publication. 

The  investigation  and  report  by  the  grand  jury  constituted  a 
judicial  proceeding,  and,  in  the  absence  of  express  malice,  a  fair 
and  correct  report  of  it  by  the  defendant  in  the  newspaper  published 
by  it  was  privileged.  Coivlcy  v.  Pulsifer,  137  Mass.  392,  50  Am. 
Rep.  318.  Kimball  v.  Post  Publishing  Co.,  199  Mass.  248,  85  N.  E. 
103,  19  L.  R.  A.  (N.  S.)  862.  The  privilege  attaching  to  such  re- 
ports rests,  however,  upon  a  somewhat  different  ground  from  that 
on  which  privileged  communications  between  private  persons  rest. 
In  them  the  person  making  the  communication  has  an  interest  to 
protect  or  a  duty  to  perform,  or  his  relation  to  the  party  to  whom  the 
communication  is  made  is  of  a  confidential  nature,  and  the  law 
holds  that  in  such  cases,  if  what  is  said  or  written  is  communicated 
in  good  faith,  in  the  belief  that  it  is  true,  and  with  no  malevolent 
motive  and  for  the  purpose  of  protecting  or  promoting  his  interest, 
or  in  the  performance  of  a  duty  incumbent  upon  him,  social  or  legal 
or  moral,  and  is  justified  or  required  by  the  nature  of  the  relations 
existing  between  him  and  the  person  to  whom  the  communication 
is  made,  and  does  not  go  beyond  what  is  fairly  warranted  by  the 
occasion,  the  communication  is  privileged.  But  no  duty  rests  upon 
the  publishers  of  a  newspaper  to  report  judicial  proceedings,  and 
their  interest  in  such  matters  is  only  that  which  all  the  rest  of  the 
community  has.  It  is  for  the  interest  of  every  one  that  crime  should 
be  detected  and  punished,  and  every  one  has  the  highest  interest  in 
whatever  pertains  to  the  proper  administration  of  justice.  It  is  upon 
these  grounds  that  the  reports  of  judicial  proceedings  fairly  and 
correctly  made  are  privileged.  Cozvlcy  v.  Pulsifer,  137  Mass.  392, 
50  Am.  Rep.  318.  Kimball  v.  Post  Publishing  Co.,  199  Mass.  248, 
85  N.  E.  103,  19  L.  R.  A.  (N.  S.)  862;  Kimbcr  v.  The  Press  Asso- 
ciation, Ltd.,  (1893)  I  O.  B.  65.  In  order  to  be  privileged  such  re- 
ports must  be  not  only  fair  and  impartial,  but  they  also  must  be 
accurate.  The  same  principle  which  requires  that  they  should  be 
fair  and  impartial  requires  that  they  should  be  accurate,  at  least  in 
regard  to  all  material  matters.  Kimber  v.  The  Press  Association, 
Ltd.,  supra.  A  distorted  report  cannot  in  the  nature  of  things  form 
the  basis  for  a  correct  judgment.  In  a  sense  it  may  make  no  differ- 
ence to  the  public  so  far  as  the  course  of  judicial  proceedings  is  con- 
cerned, whether  it  is  John  Smith  or  John  Jones  who  is  arrested. 
But  the  administration  of  justice  would  be  a  farce  or  worse  than  a 
farce  if  the  guilty  escaped  and  the  innocent  were  punished,  or  if  the 
rights  of  parties  were  determined  in  a  manner  in  which  according  to 
plain  principles  of  justice  they  should  not  be.  It  is  of  the  highest 
consequence,  therefore,  in  order  to  enable  the  public  to  judge  right- 
ly, that  a  report  of  judicial  proceedings  should  be  not  only  fair  and 


SWEET   V.    POST    PUBLISHING    CO.  III7 

impartial  but  should  be  accurate  also.  If  the  report  had  to  be 
accurate,  then  the  defendant  is  not  protected  by  the  alleged  privilege. 
For,  admittedly,  the  plaintiff  was  the  person  indicted.  Nor  can  the 
defendant  avail  itself  of  the  doctrine  laid  down  in  Hanson  v.  Globe 
Neivspaper  Co.,  159  Mass.  293,  34  N.  E.  462,  20  L.  R.  A.  856,  that 
in  order  to  render  a  defendant  liable  the  libel  must  have  been  pub- 
lished of  and  concerning  the  plaintiff,  and  it  is  not  to  be  deemed  to 
have  been  so  published  if  through  mistake  another  person  than  the 
one  intended  is  named.  It  was  in  effect  conceded  at  the  trial  that 
the  plaintiff  was  the  person  meant  although  the  naming  of  him  was 
due  to  a  mistake,  and  the  presiding  judge  so  stated  in  his  charge 
without  any  objection  being  made  thereto. 

The  defendant  contends,  however,  that  it  is  not  liable  and  is 
entitled  to  avail  itself  of  the  privilege  extended  to  fair,  impartial 
and  accurate  reports  of  judicial  proceedings  if  it  exercised  reg son- 
able  care  and  diligence  in  endeavoring  to  ascertain  what  the  facts 
were  before  it  published  the  report  and  the  mistake  occurred  in 
spite  of  such  care  and  diligence  and  was  an  honest  mistake.  It 
would  seem  that  the  defense  was  disposed  of,  so  far  at  least  as  this 
commonwealth  is  concerned,  by  the  case  of  Burt  v.  Advertiser  Co., 
154  Mass.  238,  28  N.  E.  I,  13  L.  R.  A.  97,  where  it  was  held  that 
the  privilege  did  not  extend  to  statements  made  with  reasonable 
cause  to  believe  them  to  be  true.  As  was  said  in  that  case,  "A  per- 
son publishes  libelous  matter  at  his  peril."  A  newspaper  as  a  pur- 
ve3^or  of  news  and  information  of  interest  to  the  public,  stands  no 
differently  in  respect  to  liability  from  any  other  medium  of  com- 
munication. No  doubt  when  a  person  acts  in  the  performance  of  a 
duty  or  in  regard  to  a  matter  where  his  interest  is  involved,  he  may 
justify  by  showing  that  he  had  reasonable  and  probable  cause  to 
believe  what  he  published  and  that  he  acted  bona  fide  and  in  the 
belief  that  what  he  published  was  true.  In  such  a  case  he  will  be 
protected  by  the  privilege  which  attaches  to  what  he  publishes  from 
the  consequences  of  an  honest  mistake.  In  the  present  case,  how- 
ever great  the  interest  of  the  public  in  the  doings  of  the  grand 
jury  might  have  been,  there  was,  as  already  observed,  no  duty  legal 
or  social  or  moral  resting  upon  the  defendant  to  publish  a  report  of 
them,  and  it  had  no  such  legal  interest  to  be  protected  or  promoted 
as  to  justify  it  in  the  publication  of  what  otherwise  would  be  a  libel. 
It  does  not  follow  that  because  the  public  had  an  interest  in  knowing 
what  the  grand  jury  did  that  it  was  the  defendant's  duty  to  inform 
them.^ 

It  follows  from  what  has  been  said  that  the  evidence  which  was 
offered  of  the  examination  of  the  city  directory  by  the  night  city 
editor  "as  bearing  upon  the  care  which  we  took  in  and  about  the 
publication  of  this  article"  was  rightly  excluded.  Whether  it  would 
have  been  admissible  on  the  question  of  damages  it  is  not  necessary 
to  consider.  The  purpose  for  which  it  was  offered  was  limited  to 
that  expressed  above,  and  the  ruling  was  based  on  its  competency 
for  that  purpose. 

^Accord:   Shelly  v.  Dampman,  1  Pa.  S.  C.  115  (1896). 


IIl8  CARR   v.    HOOD. 


SECTION  4. 


The  Right  to  Comment  upon  Matters  of  Public  Interest.    ("Fair 

Comment.") 


SIR  JOHN  CARR,  KNIGHT,  v.  HOOD. 

Court  of  King's  Bench,  at  Nisi  Prius,  1808.     Reported  in  note  to  Tabar*  n 
Tipper,  1  Campbell,  353. 

The  plaintiff,  who  had  written  three  books  of  travel,  brought 
an  action  of  libel  against  the  defendant,  who  had  published  a  parody 
on  one  of  them.  The  parody  ridiculed  the  book  and  also  contained  a 
rather  gross  caricature  of  the  author,  depicting  him  leaving  Ireland 
with  his  wardrobe  in  a  handkerchief  and  a  servant  laden  with  three 
immense  volumes,  one  marked  with  the  name  of  one  of  the  plain- 
tiff's productions.  He  alleged  that  in  consequence  a  publisher,  who 
was  in  treaty  for  his  fourth  production,  refused  to  publish  it,  to  his 
damage  i6oo.^ 

Plea,  not  guilty. 

Lord  Ellenborough,  as  the  trial  was  proceeding,  intimated  an 
opinion,  that  if  the  books  published  by  the  defendant  only  ridiculed 
the  plaintiff  as  an  author,  the  action  could  not  be  maintained. 

Garrow  for  the  plaintiff  allowed,  that  when  his  client  came  for- 
ward as  an  author,  he  subjected  himself  to  the  criticism  of  all  who 
might  be  disposed  to  discuss  the  merits  of  his  works ;  but  that  criti- 
cism must  be  fair  and  liberal;  its  object  ought  to  be  to  enlighten  the 
public,  and  to  guard  thena  against  the  supposed  bad  tendency  of  a 
particular  publication  presented  to  them,  not  to  wound  the  feelings 
and  to  ruin  the  prospects  of  an  individual.  If  ridicule  was  employed, 
it  should  have  some  bounds.  While  a  liberty  was  granted  of  analyz- 
ing literary  productions,  and  pointing  out  their  defects,  still  he  must 
be  considered  as  a  libeller,  whose  only  object  was  to  hold  up  an 
author  to  the  laughter  and  contempt  of  mankind.  The  object  of  the 
book  published  by  the  defendants  clearly  was,  by  means  of  immod- 
erate ridicule,  to  prevent  the  sale  of  the  plaintiff's  works,  and  en- 
tirely to  destroy  him  as  an  author.  In  the  late  case  of  Tabart  v. 
Tipper,  his  lordship  had  held  that  a  publication  by  no  means  so 
offensive  or  prejudicial  to  the  object  of  it,  was  libellous  and  action- 
able. 

Lord  Ellenborough.  In  that  case  the  defendant  had  falsely 
accused  the  plaintiff  of  publishing  what  he  had  never  published.^ 
Here  the  supposed  libel  has  only  attacked  those  works  of  which  Sir 
John  Carr  is  the  avowed  author ;  and  one  writer,  in  exposing  the 

^  The  statement  of  facts  alleged  in  the  plaintiff's  declaration  is  much 
condensed. 

^Merivale  v.  Carson,  L.  R.  20  Q.  B.  D.  275  (1887),  caustic  criticism  of 
play  and  author  based  on  misstatement  of  its  plot  and  characters;  Thomas 
V.  Bradbury,  Agnew  &  Co.,  L.  R.  1906,  2  K.  B.  627,  attack  on  a  biographer 


CARR   V.    HOOD.  1 1 19 

fnilies  and  errors  of  another,  may  make  use  of  ridicule,  however 
poignant.  Ridicule  is  often  the  fittest  weapon  that  can  be  employed 
for  such  a  purpose.  If  the  reputation  or  pecuniary  interests  of  the 
person  ridiculed  suffer,  it  is  damnum  absque  injuria.  Where  is  the 
liberty  of  the  press,  if  an  action  can  be  maintained  on  such  princi- 
ples? Perhaps  the  plaintiff's  Tour  Through  Scotland  is  now  un- 
saleable ; — but  is  he  to  be  indemnified  by  receiving  a  compensation 
in  damages  from  the  person  who  may  have  opened  the  eyes  of  the 
public  to  the  bad  taste  and  inanity  of  his  compositions?  Who  would 
have  bought  the  works  of  Sir  Robert  Filmer  after  he  had  been  re- 
futed by  Mr.  Locke?  But  shall  it  be  said  that  he  might  have  sus- 
tained an  action  for  defamation  against  that  great  philosopher,  who 
was  laboring  to  enlighten  and  ameliorate  mankind?  We  really  must 
not  cramp  observations  upon  authors  and  their  works.  They  should 
be  liable  to  criticism,  to  exposure,  and  even  to  ridicule,  if  their  com- 
position be  ridiculous ;  otherwise  the  first  who  writes  a  book  on  any 
subject  will  maintain  a  monopoly  of  sentiment  and  opinion  respect- 
ing it.  This  would  tend  to  the  perpetuity  of  error.  Reflection  on 
personal  character  is  another  thing.  Show  me  an  attack  on  the 
moral  character  of  this  plaintiff,  or  any  attack  upon  his  character 
unconnected  with  his  authorship,^  and  I  shall  be  as  ready  as  any 
Judge  who  ever  sat  here  to  protect  him  ;  but  I  cannot  hear  of  malice 
on  account  of  turning  his  works  into  ridicule. 

The  Attorney  General  having  addressed  the  jury  on  behalf  of 
the  defendants — 

Lord  Ellenbgrough  said:  Every  man  who  publishes  a  book 
commits  himself  to  the  judgment  of  the  public,  and  any  one  may 
comment  upon  his  performance.*  If  the  commentator  does  not  step 
aside  from  the  work,  or  introduce  fiction  for  the  purpose  of  con- 
demnation, he  exercises  a  fair  and  legitimate  right.  In  the  present 
case,  had  the  party  writing  the  criticism  followed  the  plaintiff  into 
domestic  life  for  the  purpose  of  slander,  that  would  have  been 
libellous :  but  no  passage  of  this  sort  has  been  produced ;  and  even 
the  caricature  does  not  affect  the  plaintiff,  except  as  the  author  of 
the  book  which  is  ridiculed.  The  works  of  this  gentleman  may  be, 
for  aught  I  know,  very  valuable ;  but  whatever  their  merits,  others 
have  a  right  to  pass  their  judgment  upon  them — to  censure  them  if 


for  his  misuse  of  "his  abundant  materials,"  which  were  in  fact  very  scanty ; 
Belknap  V.  Ball.  83  Mich.  583  (1890),  candidate  for  congress  erroneously 
reported  as  having  made  a  speech  showing  ignorance  alike  of  grammar  and 
pubHc  questions;  Stile  v.  Nokes,  7  East  493  (1806);  Risk  Allah  Bey  v. 
Whitehurst,  18  L.  T.  (N.  S.)  615  (1868)  ;  Purcell  v.  Sowler,  L.  R.  2  C.  P.  D. 
215  (1877),  comment  upon  garbled  and  distorted  reports,  much  of  which 
was  pure  invention,  of  judicial  proceedings  and  meetings  of  public  boards,  etc. 

^Compare  Lord  Tenterden,  C.  J.  in  MacLeod  v.  Waklev,  3  C.  &  P.  311 
(1828)  :  and  Dunne  v.  Anderson.  3  Bing.  88   (1825). 

*  But  criticism  of  private  letters  or  privately  circulated  productions  of 
public  men.  authors,  artists  or  scientists  is  not  with  the  protection  of  fair 
comment,  Collins,  M.  R.,  Thomas  v.  Bradburv,  Agnew  &  Co.,  1906,  2  K.  B. 
627.  and  Pollock,  C.  B.,  Gathercole  v.  Miall,  15  M.  &  W.  p.  334.  Nor  is 
'criticism  of  the  private  acts  of  a  private  person,  Snyder  v.  Fulton,  34  Md. 
128  (1870). 


II20  CARR   V.    HOOD. 

they  be  censurable,  and  to  turn  them  into  ridicule  if  they  be  ridic- 
ulous.^ The  critic  does  a  great  service  to  the  public,  who  writes 
down  any  vapid  or  useless  publication  such  as  ought  never  to  have 
appeared.  He  checks  the  dissemination  of  bad  taste,  and  prevents 
people  from  wasting  both  their  time  and  money  upon  trash.  I 
speak  of  fair  and  candid  criticism ;  and  this  every  one  has  a  right  to 
publish,  although  the  author  may  suffer  a  loss  from  it.  Such  a  loss 
the  law  does  not  consider  as  an  injury  because  it  is  a  loss  which  the 
party  ought  to  sustain.  It  is  in  short  the  loss  of  fame  and  profits  to 
which  he  was  never  entitled. **     Xothine  can  be  conceived  more 


^Accord:  Strauss  v.  Francis,  4  F.  &  F.  939,  1107  (1866);  Devereux  v. 
Clarke,  L.  R.  1891,  2  Q.  B.  582;  Thomas  v.  Bradbury,  Agnew  &  Co.,  L.  R. 
1906,  2  K.  B.  627;  Bowling  v.  Livingstone,  108  Mich.  321  (1896)  ;  McDonald 
V.  Sun  Publishing  Co.,  Ill  App.  Div.  (N.  Y.)  467  (1906),  semble;  Triggs  v. 
Sun  Publishing  Co.,  179  N.  Y.  144  (1904),  semble,  criticisms  of  literary  pro- 
ductions; Merivale  v.  Carson,  L.  R.  20  Q.  B.  D.  275  (1887);  McQuire  v. 
Western  Morning  News,  L.  R.  1903,  2  K.  B.  100;  Cherry  v.  Des  Moines 
Leader,  114  Iowa  298  (1901);  Fry  v.  Bennett,  5  Sandf.  54  (N.  Y.  1851); 
Dibdiu  V.  Swan,  1  Esp.  28  (1792);  Gott  v.  Pulsifer,  122  Mass.  235  (1877). 
criticisms  of  plays,  acting,  theatrical  management  and  songs  pubHcly  sung, 
or  other  public  exhibitions,  Soane  v.  Knight,  M.  &  M.  74  (1827)  ;  Whistler  v. 
Ruskin,  London  Times,  Nov.  27  and  28.  1878,  cited  in  McDonald  v.  Sun 
Publishing  Co.,  Ill  App.  Div.  (N.  Y.)  467  (1906)  ;  architecture  and  painting, 
Kelly  V.  Sherlock,  L.  R.  1  Q.  B.  686  (1866).  Klos  v.  Zahorik.  113  Iowa  161 
(1901),  sermons  publicly  preached,  but  see  Gathercole  v.  Miall,  15  i\I.  &  W. 
319  (1846)  ;  Hunter  v.  Sharpe.  4  F.  &  F.  983  (1866)  ;  Henwood  v.  Harrison, 
L.  R.  7  C.  P.  606  (1872)  ;  Dakhyl  v.  Lahouchere,  L.  R.  1908,  2  K.  B.  325,  n; 
scientific  or  medical  discoveries. 

Every  scheme,  in  which  the  public  are  asked  to  participate  or  patronize, 
every  trade  or  profession  openly  soliciting  public  patronage,  every  private  en- 
terprise which  serves  public  needs  or  from  its  size  affects  the  public,  is 
regarded  as  open  to  fair  criticism,  Williams  v.  Chicago  Herald,  46  111.  App. 
655  (1893)  ;  Inland  Printer  Co.  v.  Economical,  etc.,  Co.,  99  111.  App.  8  (1901)  : 
Crane  v.  Waters,  10  Fed.  619  (1882),  construction,  financial  and  operative 
management  of  a  railroad;  Archer  v.  Ritchie  &  Co.,  18  Rettie  719  (Sc.  Ct. 
Sess.  1891),  management  of  the  Order  of  Templars;  South  Hetton  Coal  Co. 
V.  North  Eastern  News  Assn.,  L.  R.  1894,  1  Q.  B.  133,  sanitary  condition  of 
a  village  and  the  houses  provided  therein  for  two  thousand  work  people. 
As  showing  the  tendency  to  widen  the  field  of  permissible  criticism,  com- 
pare with  the  last  case  Gathercole  v.  Miall,  15  M.  &  W.  319.  In  Haynes  v. 
Clinton  Printing  Co.,  169  Mass.  512  (1897),  if  is  doubted  whether  the  guilt 
or  innocence  of  one  arrested  for  a  crime  is  matter  for  public  comment. 

'  See  the  very  acute  criticism  of  Spencer  Bower,  K.  C,  in  Actionable 
Defamation,  pp.  380-384,  especially  p.  383. 

Mn  Eraser  v.  Berkeley,  7  C.  &  P.  621  (1836),  it  was  held  to  be  a  libel 
and  not  "fair  comment"  to  call  an  author  "liar,"  "coward"  and  "pimp" ; 
Triggs  v.  Sun  Publishing  Co.,  179  N.  Y.  144  (1904),  statements  in  regard 
to  the  domestic  life  of  a  university  professor,  made  in  a  criticism  of  a  lec- 
ture publicly  given  by  him. 

So  the  private  character  and  morals  of  an  artist  or  actor,  except  as 
exhibited  in  or  affecting  the  character  or  quality  of  his  public  productions, 
is  not  a  proper  subject  of  "fair  comment,"  Gathercole  v.  Miall,  15  M.  &  W. 
319  (1846),  p.  338;  Duplany  v.  Davis,  3  T.  L.  R.  184  (1886). 

The  private  acts  of  a  public  officer  or  candidate  for  office  is  a  subject 
of  public  interest  and  as  such  may  be  fairly  commented  upon,  if,  but  only  if, 
they  tend  to  show  the  presence  or  absence  of  some  trait  of  character  in- 
compatible with  or  necessary  to  a  proper  discharge  of  his  duties,  Sevmour  v. 
Buttcrworth.  3  F.  &  F.  372  (1862):  Bruce  v.  Leisk.  19  Rettie  482' (Sc.  Ct. 
of  Sessions  1892),  semble,  with  which  compare  Alderson  B.  in  Gathercole 


CAMPBELL    V.    SPOTTISVVOODE.  1 121 

threatening  to  the  Hberty  of  the  press  than  the  species  of  action  be- 
fore the  Court.  We  ought  to  resist  an  attempt  against  free  and 
hberal  criticism  at  the  threshold.  The  Chief  Justice  conchided  by 
directing  the  jury,  that  if  the  writer  of  the  pubHcation  complained 
of  had  not  travelled  out  of  the  work  he  criticised  for  the  purpose  of 
slander,  the  action  \vould  not  lie ;  but  if  they  could  discover  in  it  any 
thing  personally  slanderous  against  the  plaintiff,  unconnected  with 
the  works  he  had  given  to  the  public,"  in  that  case  he  had  a  good  . 
cause  of  action,  and  they  would  award  him  damages  accordingly.       / 

Verdict  for  the  defendants.      ' 


CAMPBELL  V.  SPOTTISWOODE. 
Court  of  Queen's  Bench,  1863.     3  B^t  &  Smith,  769. 

CocKBURN,  C.  J.^  I  am  of  opinion  that  there  ought  to  be  no 
rule.  The  article  on  which  this  action  is  brought  is  undoubtedly 
libellous.  It  imputes  to  the  plaintiff  that,  in  putting  forth  to  the 
public  the  sacred  cause  of  the  dissemination  of  religious  truth  among 
the  heathen,  he  was  acting  as  an  impostor,  and  that  his  purpose  was 
to  put  money  into  his  own  pocket  by  obtaining  contributions  to  his 
newspaper.  The  article  also  charges  that,  in  furtherance  of  that 
base  and  sordid  purpose,  he  published  in  his  newspaper  the  name  of 
a  fictitious  person  as  the  authority  for  his  statements,  and  still  fur- 
ther that,  with  a  view  to  induce  persons  to  contribute  towards  his 
professed  cause,  he  published  a  fictitious  list.  These  are  serious 
imputations  upon  the  plaintiff's  moral  as  well  as  public  character. 

It  is  said,  on  behalf  of  the  defendant,  that,  as  the  plaintiff  ad- 
dressed himself  to  the  public  in  a  matter,  not  only  of  public,  but  of 
universal  interest,  his  conduct  in  that  matter  was  open  to  public 
criticism,  and  I  entirely  concur  in  that  proposition.  If  the  pro- 
posed scheme  was  .defective,  or  utterly  disproportionate  to  the  re- 
sult aimed  at,  it  might  be  assailed  with  hostile  criticism.  But  then 
a  line  must  be  drawn  between  criticism  upon  public  conduct  and 
the  imputation  of  motives  by^which  that  conduct  may  be  supposed 
to  be  actuated ;  one  man  has  no  right  to  impute  to  another,  whose 
conduct  may  be  fairly  open  to  ridicule  or  disapprobation,  base,  sor- 
did, and  wicked  motives,  unless  there  is  so  much  ground  for  the  im- 
putation that  a  jury  shall  find,  not  only  that  he  had  an  honest  belief 
in  the  truth  of  his  statements,  but  that  his  belief  was  not  without 
foundation. 

In  the  present  case,  the  charges  made  against  the  plaintiff  were 
unquestionably  without  foundation.  It  may  be  that,  in  addition  to 
the  motive  of  religious  zeal,  the  plaintiff  was  not  wholly  insensible 
to  the  collateral  object  of  promoting  the  circulation  of  his  newspaper. 


V.  Miall,  15  M.  &  W.  319  (1846),  and  Broadhent  v.  Small,  2  Vict.  L.  R.  (Law) 
121   (1876),  Wood  V.  Boyle,  177  Pa.  St.  620  (1896). 

^  The  concurring  opinion  of  Crompton  J.  and  part  of  that  of  Mellor  J. 
are   omitted. 


1 122  CAMPBELL    V.    SPOTTISWOODE. 

but  there  was  no  evidence  that  he  had  resorted  to  false  devices  to 
induce  persons  to  contribute  to  his  scheme.  That  being  so,  Mr. 
Bovill  is  obHged  to  say  that,  because  the  writer  of  this  article  had  a 
bona  fide  belief  that  the  statements  he  made  were  true,  he  was 
privileged.  I  cannot  assent  to  that  doctrine.  It  was  competent  to 
the  writer  to  have  attacked  the  plaintiff's  scheme ;  and  perhaps  he 
might  have  suggested,  that  the  effect  of  the  subscriptions  wliich  the 
plaintiff  was  asking  the  public  to  contribute  would  be  only  to  put 
money  into  his  pocket.^  But  to  say  that  he  was  actuated  only  by 
the  desire  of  putting  money  into  his  pocket,  and  that  he  resorted  to 
fraudulent  expedients  for  that  purpose,  is  charging  him  with  dis- 
honesty ;  and  that  is  going  farther  than  the  law  allows. 

It  is  said  that  it  is  for  the  interests  of  society  that  the  public 
conduct  of  men  should  be  criticised  without  any  other  limit  than 
that  the  writer  should  have  an  honest  belief  that  what  he  writes  is 
true.  But  it  seems  to  me  that  the  public  have  an  equal  interest  in 
the  maintenance  of  the  public  character  of  public  men ;  and  public 
affairs  could  not  be  conducted  by  men  of  honor  with  a  view  to  the 
welfare  of  the  country,  if  we  were  to  sanction  attacks  upon  them, 
destructive  of  their  honor  and  character,  and  made  without  any 
foundation.  I  think  the  fair  position  in  which  the  law  may  be  set- 
tled is  this :  that  where  the  public  conduct  of  a  public  man  is  open 

\   to  animadversion  and  the  writer  who  is  commenting  upon  it  makes 
—   imputations  on  his  motives  which  arise  fairly  and  legitimately  out 

'  of  his  conduct,  so  that  a  jury  shall  say  that  the  criticism  was  not 
only  honest,  but  also  well  founded,  an  action  is  not  maintainable.'^ 
But  it  is  not  because  a  public  writer  fancies  that  the  conduct  of  a 
public  man  is  open  to  the  suspicion  of  dishonesty,  he  is  therefore 
justified  in  assailing  his  character  as  dishonest.* 

The  cases  cited  do  not  warrant  us  in  going  that  length.  In 
Paris  V.  Levy,  2  F.  &  F.  71,  there  may  have  been  an  honest  and  well- 
founded  belief  that  the  man  who  published  the  handbill  which  was 
commented  upon,  could  only  have  had  a  bad  motive  in  publishing  it, 
and  if  the  jury  were  of  that  opinion,  the  writer  who  attacked  him  in 
the  public  press  would  be  protected.  We  cannot  go  farther  than 
that. 


"But  see  Boal  v.  Scottish  Catholic  Printing  Co.,  1907  Scottish  Ct.  of 
Session  Rep.  1120,  where  a  query,  as  to  what  guarantee  there  was  that  money 
subscribed  for  a  home  would  not  go  to  the  private  profit  of  those  soliciting 
the  subscriptions,  was  held  to  go  beyond  fair  comment. 

^  Compare  the  language  of  the  same  judge  in  Morrison  v.  Belcher,  3  F 
&  F.  614  (1863)  ;  Hedley  v.  Barlow,  4  F.  &  F.  224  (1865)  ;  Risk  Allah  Bey 
v.  IVhitchurst,  18  L.  T.  (N.  S.)  615  (1868),  and  Reg.  v.  Tanfield,  42  J.  P. 
423  (1878). 

*See  Pallas,  C.  B.  in  Lefroy  v.  Burnside,  4  L.  R.  Ir.  556  (1879),  p.  567, 
to  the  effect  that  no  reasonable  inference  of  guilt  can  be  drawn  from  the 
fact  that  "a  man  having  the  means  of  committing  a  crime  and  the  crime 
being  in  fact  committed,"  and  Havnes  v.  Clinton  Printing  Co.,  169  Mass. 
512  (1897),  and  Commercial  Publishing  Co.  v.  Smith,  149  Fed.  704  (C.  C.  A. 
6th  Circ.  1907),  in  which  the  plaintiff's  guilt  was  insinuated  or  assumed  upon 
"nsufficient  grounds. 


CAMPBELL   V.    SPOTTISWOODE.  II23 

Blackburn,  J.  I  also  think  that  the  law  governing  this  case  is 
so  clearly  settled  that  we  ought  not  to  grant  a  rule.  It  is  important 
to  bear  in  mind  that  the  question  is,  not  whether  the  publication  is 
privileged,  but  whether  it  is  a  libel.  The  word  "privilege"  is  often 
used  loosely,  and  in  a  popular  sense,  when  applied  to  matters  which 
are  not,  properly  speaking,  privileged.  But,  for  the  present  pur- 
pose, the  meaning  of  the  word  is  that  a  person  stands  in  such  a 
relation  to  the  facts  of  the  case  that  he  is  justified  in  saying  or  writ- 
ing what  would  be  slanderous  or  libellous  in  any  one  else.  For  in- 
stance^ a  master  giving  a  character  of  a  servant  stands  in  a  privileged 
relation.  In  these  cases  no  action  lies  unless  there  is  proof  of  ex- 
press malice.  If  it  could  be  shown  that  the  editor  or  publisher  of  a 
newspaper  stands  in  a  privileged  position,  it  would  be  necessary  to 
prove  actual  malice.  But  no  authority  has  been  cited  for  that 
proposition ;  and  I  take  it  to  be  certain  thai?  he  has  only  the  general 
right  which  belongs  to  the  public  to  comment  upon  public  matters, 
for  example,  the  acts  of  a  minister  of  state ;  or,  according  to  modern 
authorities  somewhat  extending  the  doctrine,  where  a  person  has 
done  or  published  anything  which  may  fairly  be  said  to  invite  com- 
ment, as  in  the  case  of  a  handbill  or  advertisement :  Paris  v.  Levy, 
2  F.  &  F.  71.  In  such  cases  every  one  has  a  right  to  make  fair  and 
proper  comment ;  and,  So  long  as  it  is  within  that  limit,  it  is  no 
libel. 

The  question  of  libel  or  no  libel,  at  least  since  Fox's  Act  (32  G. 
3,  C.  60),  is  for  the  jury ;  and  in  the  present  case,  as  the  article  pub- 
lished by  the  defendant  obviously  imputed  base  and  sordid  motives 
to  the  plaintiff,  that  question  depended  upon  another — whether  the 
article  exceeded  the  limits  of  a  fair  and  proper  comment  on  the 
plaintiff's  prospectus ;  and  this  last  question  was  therefore  rightly 
left  to  the  jury.  Then  Mr.  Bovill  asked  that  a  further  question 
should  be  left  to  them,  viz :  whether  the  writer  of  the  article  honestly 
believed  that  it  was  true ;  and  the  jury  have  found  that  he  did.  We 
have  to  say  whether  that  prevents  an  action  being  maintained.  I 
think  not.  Bona  fide  belief  in  the  truth  of  what  is  written  is  no  de- 
fense to  an  action ;  it  may  mitigate  the  amount,  but  it  cannot  disen- 
title the  plaintiff  to  damages.  Moreover  that  honest  belief  may  be 
an  ingredient  to  be  taken  into  consideration  by  the  jury  in  deter- 
mining whether  the  publication  is  a  libel,  that  is,  whether  it  exceeds 
the  limits  of  a  fair  and  proper  comment ;  but  it  cannot  in  itself  pre- 
vent the  matter  being  libellous. 

Mellor,  J.  I  am  of  the  same  opinion.  I  should  be  unwilling 
to  limit  the  right  of  a  writer  in  a  newspaper,  or  any  other  individual, 
to  canvass  any  scheme,  even  though  it  be  a  scheme  of  public  benevo- 
lence. But  giving  full  latitude  to  fair  comment,  so  soon  as  a  writer 
imputes  that  the  person  proposing  the  scheme  is  doing  it  from  a  base 
and  sordid  motive,  and  is  putting  forth  a  list  of  fictitious  subscribers, 
'n  order  to  delude  others  to  subscribe,  it  cannot  be  said  to  be  within 
the  limits  of  fair  criticism. 

If  comment  is  beyond  the  limits  of  fair  criticism  it  becomes  a 


1 124  NONPAREIL   CORK    MFG.    CO.    V.    KEASBEY    &C.    CO. 

libel.  And  I  agree  that  the  question  in  this  case  is,  libel  or  no  libel. 
If  the  words  were  used  upon  a  justifiable  occasion,  no  action  could 
be  maintained ;  for  the  interest  and  exigencies  of  society  require 
that  there  should  be  free  communication  between  parties  who  have  a 
duty,  either  moral  or  legal,  to  discharge  toward  each  other,  as  in 
the  common  case  of  a  master  giving  the  character  of  a  servant,  in 
which  defamatory  words  are  privileged  unless  proved  to  be  false 
and  malicious.  But  in  the  present  case  there  was  no  legal  or  moral 
duty  on  the  writer  to  make  these  imputations  upon  the  plaintiff. 


NONPAREIL  CORK  MANUFACTURING  CO  v.   KEASBEY 
&  MATTISON  CO. 

Circuit  Court,  E.  D.  Pennsylvania,  1901.     108  Federal  Reporter  721. 

Action  for  libel.    On  demurrer  to  plaintiff's  statement. 

Dallas,  Circuit  Judge.^  It  is  alleged  that  the  defendants  pub- 
lished a  circular  letter  containing  the  following : 

"Cork  has  been  recently  exploited  iti  various  cities  of  the 
United  States  as  a  steam  pipe  and  boiler  covering.  When  it  was 
first  presented  for  our  consideration,  we  expressed  the  opinion  that, 
it  being  organic,  it  would  carbonize  and  burn,  as  hair  felt  does ; 
that  under  the  most  favorable  conditions  it  carried  with  it  an  ele- 
ment of  danger ;  and  that  it  never  could  become  a  permanent  stand- 
ard material  for  the  covering  of  heated  surfaces.  We  refer  you 
herein,  without  further  comment,  to  localities  and  people  that  have 
had  practical  experience  with  cork  covering,  and,  from  the  nature 
of  the  reports  we  have  concerning  the  same,  feel  warranted  in  con- 
tinuing to  believe  that  our  opinion,  as  above  stated,  as  to  cork's  value 
for  covering  steam  pipes  and  boilers,  was  correct." 

As  to  this  matter  the  innuendo  is : 

"Meaning  and  intending  thereby  that  the  covering  so  manufac- 
tured and  sold  by  the  plaintiff  was  inferior  in  quality  and  character 
to  other  coverings,  and  especially  to  the  coverings  manufactured 
and  sold  by  the  defendants,  and  that  it  was  unfitted  for  the  purpose 
for  which  it  was  sold,  and  that  the  use  thereof  was  dangerous." 

The  action  is  not  strictly  an  action  of  libel,  but  a  special  action 
on  the  case  for  disparaging  the  plaintiff's  goods ;  and,  with  refer- 
ence to  this  view  of  it,  I  deem  it  necessary  only  to  repeat  what  was 
said  by  Lord  Denman  in  Evans  v.  Harloiv,  5  Q.  B.  624  : 

"A  tradesman  who  offers  goods  for  sale  exposes  himself  to  ob- 
servations of  this  kind,  and  it  is  not  by  advertising  them  to  be  false, 
scandalous,  and  malicious  and  defamatory  that  the  plaintiff  can 
found  a  charge  of  libel  upon  them.    To  decide  so  would  open  a  very 

^  Only  so  much  of  the  opinion  is  given  as  relates  to  the  disparaging  im- 
putations upon  the  plaintiffs'  wares. 


CLIFTOK   Z'.    LANGE.  II25 

wide  door  to  litigation,  and  might  expose  every  man  who  said  his 
goods  were  better  than  another's  to  the  risk  of  an  action. "- 

From  the  whole  declaration  it  plainly  appears  that  what  the 
defendants  are  charged  with  is  really  but  the  expression  of  an  un- 
favorable opinion  of  the  goods  of  its  competitor.  Ijut  such  expres- 
sions are  not  uncommon  among  rivals  in  trade,  and  their  correct- 
ness in  each  instance  is  for  determination  by  those  whose  custom  is 
sought,  and  not  by  the  courts.    Judgment  for  defendant. 


CLIFTON  V.  LANGE. 
Supreme  Court  of  Iowa,  1899.     ?t)8  Iowa,  472. 

Appeal  from  district  court.  Pocahontas  county ;  W.  B.  Ouar- 
ton,  Judge. 

Action  at  law  to  recover  damages  caused  by  the  publication  by 
the  defendant,  in  a  weekly  newspaper,  of  the  following,  of  and  con- 
cerning the  plaintiff:  "Modern  Justice  (?).  Should  two  men  hold 
up  a  third  man  on  the  streets  of  Laurens  in  broad  daylight,  and  rob 
him  of  $65  to  $75,  the  robbers  would  be  sure  to  serve  a  term  in  the 
penitentiary,  and  the  authorities  might  find  it  difficult  to  prevent 
them  from  being  lynched.  Yet  modern  justice,  in  the  disguise  of 
law,  committed  a  crime  equally  as  great  a  few  days  ago,  and  the 
methods  employed  and  tactics  plied  were  no  more  dishonorable  than 
highway  robbery.  The  parties  who  did  the  holding  up  were  J.  S. 
Clifton,  a  justice  of  the  peace,  and  J.  W.  Convy,  a  constable,  and 
the  party  they  attempted  to  rob  was  Chas.  Snider ;  and  they  proba- 
bly would  have  succeeded,  had  not  the  matter  become  public,  and 
outsiders  came  to  his  rescue  in  time  to  appeal  to  a  higher  court, 
where  snap  judgments  are  not  engineered  by  the  aid  of  the  court, 
and  save  his  home  from  being  sold  on  a  judgment  rendered  by  two 
vultures  sitting  ready  to  pounce  upon  and  divide  the  spoils.  Did 
J.  S.  Clifton  do  as  he  would  like  to  be  done  by  if  he  was  in  Snider's 
place?  Did  he  give  both  sides  justice?  Was  there  any  honorable 
act  done  by  the  justice  from  start  to  finish?  If  so,  what?  Could 
the  James  gang  have  done  worse,  had  they  presided  in  Clifton's 
place?    Take  down  these  signs  of  'Ji-istice,'  and  print  in  large  let- 


"^  In  Evans  v.  Harlow,  supra,  the  defendant's  circular  stated  that  "those 
who  have  already  adopted  (the  plaintiff's)  lubricators,  .  .  .  will  find  that 
the  tallow  is  wasted  instead  of  being  effectually  employed."  See  Christiancy, 
J.,  in  Weiss  v.  Whittemore,  28  Mich.  366  (1873),  "both  the  plaintiff  and  the 
defendant  were  at  entire  liberty  to  recommend  that  for  which  they  were 
respectively  the  agents,  as  superior  to  the  other ;  to  point  out  all  its  ad- 
vantages, as  well  as  all  the  defects  of  the  other,  so  long  as  they  con- 
fined themselves  to  their  own  views,  and  such  proofs  as  they  were  able  to 
offer,  and  a  reasonable  latitude  should,  of  course,  be  allowed  for  each  to 
puff  his  own." 


1 126  CLIFTON    V.    LANGE. 

ters,  and  hang  there  instead,  the  more  appropriate  sign  of  'Modern 
Crucifixion.'  Honorable  justices  and  constables  are  essential  and 
necessary  to  every  community,  but  when  they  become  hawks  and 
vultures,  perched  in  dark  corners  waiting  for  some  weakling  to  fall 
by  the  wayside,  and  pounce  upon  them  and  devour  them  because 
they  are  weak,  poor  and  helpless,  then,  the  sooner  they  are  exposed 
and  receive  deserved  punishment,  the  better  it  will  be.  Now,  right 
here  is  where  the  dishonorable  act  of  the  court  comes  in,  and  where 
the  gross  and  dishonest  prejudice  of  J.  S.  Clifton,  the  justice  of  the 
peace,  helped  in  the  rotten  and  infernal  steal.  He  knew  that  Paige 
was  Snider's  attorney:  he  knew  that,  if  Snider  was  able  to  conduct 
the  case  himself,  he  would  not  have  hired  an  attorney,  and  as  Paige 
was  the  first  attorney  to  appear  in  the  case  and  had  only  left  the 
room  to  get  authorities  to  cite,  why  did  he  not  wait  until  Paige  got 
back?  Why  did  he  not  give  the  defendant  one-tenth  of  the  cour- 
tesy he  had  extended  to  the  plaintiff  by  running  around  town  and 
apprising  him  that  the  case  would  be  contested  on  the  part  of  the 
defendant?  Why  did  he  not  do  that,  we  ask?  He  shows  by  his  act 
that  he  was  a  party  to  the  theft  and  dishonorable  act." 

Verdict  and  judgment  were  rendered  in  favor  of  the  plaintiff 
for  $200.     Defendant  appeals. 

Given,  J.  In  view  of  the  question  involved,  we  regret  that  the 
case  is  submitted  without  argument  for  appellee.  The  publication 
is  conceded  to  be  libelous  and  actionable  per  se.  By  the  first  division 
of  the  answer,  we  have  the  single  issue  whether  it  was  maliciously 
published,  and  it  was  upon  this  issue  that  the  case  was  submitted  to 
the  jury.  The  defendant,  "for  a  second  and  complete  defense.... 
states  that  every  fact  charged"  in  the  publication  to  have  been  done 
by  plaintiff  "was  the  truth,  and  in  fact  done  as  therein  charged." 
Such  a  plea  must  be  as  broad  as  the  charge  made.  This  is  not  so. 
It  merely  pleads  as  true  what  are  stated  to  have  been  the  acts  of  the 
plaintiff',  and  does  not  plead  the  truth  of  the  libelous  charges.  To 
plead  that  part  of  the  charge  is  true  is  not  sufificient ;  the  entire 
libelous  charge  must  be  alleged  to  be  true ;  and,  if  this  was  the  de- 
fendant's purpose,  he  should  have  pleaded  it  in  unmistakable  lan- 
guage. 

In  the  fifth  division  of  the  answer  it  is  alleged,  as  a  complete 
defense,  that  said  publication  is  privileged.  The  law  is  well  settled 
that  a  fair  and  true  publication,  without  malice,  of  a  prejudicial  pro- 
ceeding, or  of  anything  stated  as  part  thereof,  or  "a  criticism  of  an 
official  act  of  a  public  officer,  made  without  malice,  and  not  contain- 
ing any  attack  upon  his  private  character,"  is  privileged.  Townsh. 
Sland.  &  L.,  §  208,  and  note  ;  McBee  v.  Fulton,  47  Md.  403  :  McAllis- 
ter V.  Press  Co.,  (]\Iich.)  43  N.  W.  431  ;  13  Am.  &  Eng.  Enc.  Law, 
419.  The  publication  admitted  to  have  been  made  is  not  privileged, 
for  the  reason  that  it  contains  an  attack  upon  the  private  character 
of  the  plaintiff,  and  it  is  not,  therefore,  a  privileged  publication ;  and 


MC  DOXALD    r.    SUX    PRINTING    &C.    CO.  112/ 

there  was  no  error  in  sustaining  the  demurrer  to  the  fifth  division  of 
the  answer.^ 


^IcDOXALD  v.  THE  SUN  PRIXTIXG  &  PUBLISHING  CO. 

Supreme  Court  of  New  York,  1904.     45  .V.  Y.  Misc.  Rep.  441. 

Gaynor,  J.  The  alleged  defamatory  article  gives  the  following 
facts:  The  plaintiff  was  employed  in  the  Biircati  of  Education  of 
the  national  government  at  Washington  for  several  years  under  the 
.titleof  "Specialist  in  Education  as  a  Preventative  of  Pauperism  and 
_Cnme.  rle  published  a  personal  advertisement  in  new^spapers  that 
a  gentleman  of  high  social  and  university  position  desired  corre- 
spondence with  young  educated  women  of  high  social  and  financial 
position,  and  that  they  must  give  detailed  accounts  of  their  lives. 
He-gave  no  name,  but  a  lock-box  in  the  Post  Office  at  Washington, 
D.  C.,  as  his  address.  The  plaintiff  corresponded  with  the  women 
who  answered  (which  his  evidence  shows  to  have  been  a  large  num- 
ber), and  got  them  to  \\Tite  all  he  could  concerning  themselves.  He 
also  made  appointments  wnth  some  of  them  (he  testified  forty  to 
fifty)  in  streets  and  public  places,  and  in  some  cases  in  their  homes, 
or  other  private  houses,  and  met  them  and  talked  with  them.  He 
then  w^rote  a  book  with  the  title  "Girls  W^ho  Answer  Personals," 
out  of  the  materials  he  had  thus  collected,  and  sold  it  for  fifty  cents 
a  copy  through  his  lock-box.  On  the  title  page  he  put  "Dr."  before 
his  name,  but  he  was  not  a  doctor  of  any  kind. 

The  defendant  put  the  book  in  evidence.     It  contains  many  of 


_  ^^  Accord:  Bearce  v.  Bass,  88  Maine  521  (1896),  scmhle,  in  which  a 
criticism  of  the  bad  construction  of  a  building  was  held  fair  comment 
because  it  attacked  only  the  work  and  not  the  personal  character  of  the 
contractor;  Bee  Publishing  Co.  v.  Shields,  68  Xebr.  750  (1903),  suggestion 
that  a  district  attorney's  failure  to  prosecute  gamblers  was  due  to  bribery ; 
IV afford  V.  Meeks,  129  Ala.  349  (1900),  in  which  it  is  intimated  that  to  char- 
acterize a  public  officer's  official  acts,  in  terms  usually  reserved  for  accusa- 
tions of  crime,  is  not  fair  comment;  compare  Speight  v.  S\me,  21  Vict.  L.  R. 
(Law)  672  (1895)  ;  and  see  Szveeney  v.  Baker,  13  W.  Va.  "l58  (1878),  Note  3 
to  Coleman  v.  MacLcnnan,  ante. 

In  many  of  the  cases  w-here  it  is  stated,  in  various  forms,  that,  while  the 
fitness  of  a  candidate  or  officer  for  the  office  as  shown  by  his  official  or  even 
private  conduct  may  be  discussed,  neither  improper  motives  nor  criminality 
may  be  imputed  to  him.  there  was  an  untrue  statement  of  his  acts  or  con- 
duct, or  a  general  insinuation  against  or  characterization  of  his  con- 
duct, in  form  perhaps  comment,  but  without  any,  or,  if  any,  an  incomplete 
statement  of  the  acts  and  conduct  so  characterized,  People  V.  Fuller  238 
111.  116  (1909);  Russell  v.  Washington  Post,  31  D.  C.  App.  277  (1908): 
Dauphiny  v.  Buhne.  153  Cal.  7S7  (1908)  ;  and  Tanner  v.  Embree,  9  Cal.  App. 
481  (1908),  in  which  charges  of  gross  official  misconduct  were  called  by 
the  court  attacks  on  the  plaintiflf's  "personal  character";  Mattice  v.  JVilco.x- 
147  N.  Y.  624  (1895):  Upton  v.  Hume,  24  Ore.  420  (1893),  and  see  cases 
cited  in  Coleman  v.  MacLennan.  ante,  — ,  and  notes  thereto,  and  23  Harv 
L.  R.  432,  n.  2,  and  433,  n.  1  and  2.      . 


1128  ■  MCDONALD   V.    SUX    PRIXTING    &C.    CO. 

the  letters  of  the  women  who  wrote  to  the  plaintiff.  It  also  gives  the 
particulars  of  the  personal  interviews  he  had  with  some  of  them, 
including  in  some  cases  their  physical  appearance,  manner  and  tem- 
perament. The  rest  of  the  book  is  made  up  of  general  matter  and 
comment  pertaining  to  the  sexual  instinct  and  the  relation  of  the 
sexes. 

There  is  no  fact  in  dispute.  This  brings  the  case  under  the 
head  that  if  the  facts  be  undisputed,  and  different  inferences  may  , 
not  be  drawn  from  them,  it  is  for  the  court  to  direct  a  verdict.  I 
sent  it  to  the  jury  on  the  question  whether  the  inferences  of  fact 
drawn  and  expressed  by  the  defendant,  and  upon  which  the  charge 
of  defamation  depends,  were  reasonably  possible  and  therefore  per- 
missible. 

Those  inferences  are,  in  substance,  that  the  conduct  of  the 
plaintiff  and  the  book  were  a  "scandal,"  "shameless,"  and  that  the 
plaintiff"  was  a  "prurient."  Around  these  words  cling  all  that  was 
claimed  to  be  or  deemed  defamatory  on  the  trial. 

The  occasion  of  the  defendant's  criticism  was  that  plaintiff 
was  working  to  get  Congress  to  pass  a  bill  which  he  had  prepared 
to  establish  in  the  Department  of  Justice  a  "laboratory  for  the  study 
of  the  abnormal  classes,"  with  the  object  of  having  himself  em- 
ployed by  the  government  to  run  it,  he  having  been  dropped  from  the 
Bureau  of  Education ;  all  of  which  is  revealed  in  the  article  sued 
upon. 

The  plaintiff'  claimed  in  the  witness  box  on  cross-examination 
that  he  collected  the  material,  and  wrote  and  circulated  the  book, 
from  pure  and  worthy  motives,  solely  in  the  interest  of  the  study  and 
development  of  the  science,  of  criminology^  for  the  benefit  of  the 
human  race.  He  said  that  his  object  was  to  study  women  who  arc 
at  the  border  line  between  chastity  and  looseness,  with  a  view  to  the 
future  help  and  preservation  of  such  women. 

The  plaintiff  was  holding  his  said  position  in  the  Bureau  of 
Education  when  he  did  all  of  these  things,  but  he  did  not  do  them 
for  the  government,  or  get  permission  therefor  of  those  over  him, 
or  file  the  material  he  collected  with  the  bureau  in  which  he  was 
employed,  but  used  it  for  his  own  profit  in  the  way  already  stated. 

Though  the  plaintiff  testified  on  cross-examination  in  respect 
of  his  motives  and  object,  I  did  not  and  do  not  deem  the  evidence 
relevant  or  competent.  On  the  contrary,  the  question  is  not  wheth- 
er he  can  now  in  the  witness  box  convince  a  jury  of  the  purity  of 
his  motives  and  object,  but  what  inferences  were  and  are  permissible 
to  the  defendant  or  any  one  else  in  discussing  his  book  and  his  con- 
duct, and  his  personalit}-  as  revealed  thereby.  It  may  be  that  the 
plaintiff  is  even  able  by  his  persuasive  powers  to  now  convince  the 
defendant  that  in  drawing  the  inferences  from  his  book  which  it  did 
unaided  by  his  presence  and  explanation,  it  was  mistaken,  but  that 
would  be  wholly  immaterial.  The  question  is,  did  his  book  and  con- 
duct justify  such  inferences? 


MCDONALD    V.    SUX    PRTXTIXG    &C.    CO.  II29 

Any  one  who  publishes  a  book,  or  does  any  pubhc  act,  chal- 
enges  discussion  and  criticism.  Every  one  has  the  right  to  indulge 
in  such  discussioirand~criticism  freely  and  fully,  and  to  draw  infer- 
ences and  express  opinions  on  the  facts  in  the  same  way.  That  his 
opinions  and  inferences  are  far  fetched,  high  strung  or  severely 
chaste  or  moral,  or  contrary  to  other  inferences  or  opinions  that 
seem  more  reasonable,  does  not  matter  so  long  as  there  be  a  basis 
for  them.  The  opinion  of  the  smallest  minority  often  becomes  the 
opinion  of  a  majority  or  of  all.  The  prevailing  opinion  of  one  gen- 
eration often  becomes  such  an  absurdity  to  die  next,  that  the  wonder 
then  is  how  any  one  ever  entertained  it,  as  John  Stuart  ^Mill  says. 
It  is  for  this  reason  that  the  law  gives  full  latitude  in  the  expression 
of  opinions  on  things  of  general  concern.  So  long  as  such  discus- 
sion and  criticism  keep  within  matters  of  reasonable  opinion  on  the 
facts,  they  cannot  be  defamatory.  If,  on  the  contrary,  the  personal 
character  of  the  individual  be  touched  by  false  statements,  or  by 
asperations  with  no  facts  to  rest  upon,  the  writer  is  on  the  common 
ground   of  defamation. 

Criticism  is  no  exception  in  the  general  law  of  defamation, 
though  some  dicta  would  lead  one  to  suppose  that  it  is.  A  critic  is 
no  more  permitted  to  make  false  aspersions  or  statements  of  fact 
which  are  defamatory  than  any  one  else.  Criticism  is  an  expression 
of  opinion  on  facts  from  wdiich  differences  of  opinion  may  reason- 
ably arise,  and  if  it  sticks  to  that,  it  is  not  defamatory,  no  matter 
though  it  be  severe,  hostile,  rough,  caustic,  bitter,  sarcastic  or  satir- 
ical, for  these  are  the  weapons  of  criticism  ;^  and  no  matter  how 
different  the  opinion  may  be  to  the  opinion  of  others,  or  of  a  major- 
ity, however  great,  provided  it  derives  its  color  from  the  facts. 

In  the  present  case  the  plaintiff  is  charged  wnth  pruriency, 
scandal  and  shamelessness.  This  aft'ects  his  personal  character.  If 
his  book  and  his  conduct  lay  him  open  to  the  charge,  the  defendant 
did  not  go  outside  the  realm  of  criticism,  and  is  not  liable.  If  they 
do  not,  then  the  defendant  is  liable. 

It  is  not  always  easy  to  determine  whether  the  question  pre- 


^  Compare  Merivale  v.  Carson,  L.  R.  20  Q.  B.  D.  275  (1887).  "Every 
latitude  must  be  given  to  opinion  and  prejudice.  Mere  exaggeration,  or 
even  gross  exaggeration,  would  not  make  the  comment  unfair.  However 
wrong  the  opinion  expressed  may  be  in  point  of  truth,  or  however  preju- 
diced the  writer,  it  may  still  be  within  the  prescribed  limit.  The  question 
which  the  jury  must  consider  is  this — would  any  fair  man.  however  preju- 
diced he  may  be,  however  exaggerated  and  obstinate  his  views,  have  said 
that  which  this  criticism  has  said  of  the  work  criticized" — Lord  Esher,  pp. 
280-281.  "It  must  be  assumed  that  a  man  is  entitled  to  entertain  any  opinion 
he  pleases,  however  wrong,  exaggerated  or  violent  it  may  be.  In  the  case  of 
literary  criticism  it  is  not  easy  to  conceive  what  would  be  outside  of  that 
region  of  fair  criticism,  unless  the  writer  went  out  of  his  way  to  make  a 
personal  attack  on  the  author" — Bowen,  L.  J.,  pp.  283-284.  See  Triggs  v. 
Sun  Printing  and  Publishing  Co.,  179  N.  Y.  144  (1904),  where  the  critic 
was  held  to  have  gone  out  of  his  way  to  attack  the  author's  personal  char- 
acteristics. 


1 130 


MC  DONALD   V.    SUN    PRINTING    &C.    CO. 


il 


sented,  i.  c,  the  question  whether  the  inference  drawn  and  expressed 
by  the  defendant  is  a  reasonably  possible  one,  and  therefore  per- 
missible, is  one  of  law  or  one  of  fact,  i.  e.,  a  question  to  be  decided 
by  the  court,  or  one  to  be  decided  by  the  jury.  Cases  could  be 
imagined  in  which  the  question  would  be  one  of  law.  If,  for  in- 
stance, one  should  write  advocating  murder,  it  would  be  for  the  court 
to  rule  that  the  inference  that  he  was  a  murderous  character  was 
permissible.  IVIurder  is  an  unmistakably  defined  crime,  and  there 
can  be  no  doubt  about  what  it  is. 

But  what  of  pruriency  ?  It  is  an  elastic  term.  Matter  and  con- 
duct which  some  people  deem  prurient  other  good  people  deem 
chaste.  There  is  no  fixed  standard  of  pruriency.  It  is  largely  a 
matter  of  education  and  taste.  And  the  same  is  true  in  respect  of 
scandal  and  shamelessness. 

Nevertheless,  one  may  do  or  say  or  write  things  that  are  beyond 
question  scandalous,  shameless  and  prurient,  and  that  would  be  a 
case  presenting  a  question  of  law  and  not  of  fact.  But  I  am  fully 
convinced  that  the  present  is  not  such  a  case.  I  have  looked  over 
'the  book  carefully,  and  considered  the  plaintiiT's  conduct,  and  I 
think  the  question  was  for  the  jury,  i.  e.,  it  was  for  them  to  say 
whether  the  inferences  drawn  by  the  defendants  from  the  facts 
were  reasonably  possible  and  therefore  permissible.  If  the  infer- 
ences be  false,  /.  c,  such  as  the  facts  will  not  bear  at  all,  then  they 
are  defamatory.  It  is  not  enough  in  a  given  case  that  the  jury  dis- 
agree with  the  inferences.-  The  question  is  whether  they  may  be 
reasonably  drawn,  as  matter  of  argument,  although  other  and  oppo- 
site and,  in  the  opinion  of  many  or  most  people,  better  inferences 
may  also  be  drawn. 

The  case  of  Whistler  v.  Riiskin  serves  as  an  illustration.  There 
the  greatest  English  art  critic  of  the  last  century  wrote  of  one  who 
bids  fair  to  rank  as  the  greatest  English  artist  of  the  last  century : 
**For  Air.  Whistler's  own  sake,  no  less  than  for  the  gallery  of  the 
p«x£iLaS£r,-§ir  Coutts  Lindsay  ought  not  to  have  admitted  works  into 
the  gallery  in  which  the  ill-educated  conceit  of  the  artist  so  nearly 
approached  the_aspect3£lwiLful-  iaiposture.  I  have  seen  and  heard 
««Kb~uf"cocktt^f^m^pii4eace_liefpre  now,  but  never  expected  to  hear 
a  coxcomb  ask  20Q_gujn£as  for  flinging  a  pot  of  paint  in  the  public's 
,  face."  The  words  "wilful  imposture"  were  held  by  the  jury  (for  it 
^was  left  to  the  jury)  to  be  a  false  aspersion  or  statement  of  fact 
involving  the  personal  integrity  of  the  plaintiff,  and  not  an  expres- 
sion of  opinion  concerning  his  art  or  him  as  an  artist.  An  inference 
of  imposture  was  held  not  permissible  by  the  jury.  It  was  not  taken 
to  itself  as  a  question  of  law  by  the  court,  although  it  would  seem 
that  the  inference  to  be  drawn  from  the  picture  and  the  fact  of  its 
s^sale  by  the  plaintiff  for  a  work  of  his  art  was  closer  to  being  a 
.  question  of  law  than  is  the  question  here ;  for  whether  it  was  a  work 
of  art  instead  of  a  daub  was  necessarily  a  matter  of  opinion,  and  the 


'■'Accord:     McQiilre  v.  Western  Morning  News,  L.  R.  1903,  2  K.  B.  100. 


HUNT    Z'.    STAR    NEWSPAPER    CO.  II3I 

artist  was  entitled  to  his  opinion,  and  to  rate  the  vaiue  of  his  work 
on  his  opinion. 

The  motion  to  direct  a  verdict,  and  also  the  motion  for  a  new 
trial,  are  denied.^ 


HUNT  V.  STAR  NEWSPAPER  CO.,  LTD. 

Court  of  Appeal,  1908.    Lazv  Reports,  1908,  2  king's  Bench  Div.  309. 

Cozens-Hardy,  M.  R.  This  is  an  application  for  a  new  trial 
on  the  ground  of  misdirection.  The  action  was  for  libel,  based  upon 
two  articles  in  the  Star  and  the  Morning  Leader  newspapers.  The 
articles  complained  of  related  to  the  plaintiff,  who  was  deputy  re- 
turning officer  at  the  Caxton  Hall  polling  station  at  the  election  for 
the  London  County  Council  in  March,  1907.  I  do  not  think  it  neces- 
sary to  read  the  articles  in  full.  The  article  in  the  Star  is  headed 
*Tn  Westminster.  Serious  Allegations  made  by  Progressive  Candi- 
dates ;"  and  the  article  in  the  Morning  Leader  is  headed,  "Obstruct- 
ing Progressives.  Extraordinary  Action  by  Westminster  Polling 
Official."  Each  article  stated  certain  alleged  facts  with  reference  to 
what  took  place  in  the  Caxton  Hall  and,  as  the  plaintiff  asserts, 
charged  the  plaintiff  with  not  having  acted  honestly  in  the  discharge 
of  his  statutory  duties  as  deputy  returning  officer,  and  as  having 
been  influenced  by  political  bias  with  intent  to  prejudice  the  Pro- 
gressive candidates.  The  defendants  pleaded,  as  a  separate  defense, 
that  in  so  far  as  the  said  words  consisted  of  comment  the  same 
were  fair  and  bona  fide  comment  upon  a  matter  of  public  interest 
and  importance.  The  learned  judge  dealt  with  the  plea  of  fair  com- 
ment as  follows :  'Tf  a  newspaper  publishes  exactly  what  took  place 
\v'ith  no  comment  whatever,  they  would  be  justified  in  so  doing  as  a 
matter  of  public  interest,  but  if  they  add  to  that  comment  of  their 
own,  then  the  question  is  whether  that  comment  was  bona  fide  and 
^^air  comment,  or  whether  it  was  cominent  which  tended,  as  alleged 
here,  to  charge  the  plaintiff  with  improper  conduct."  And  at  the 
end  of  the  summing  up  he  says  this:  "If  you  come  to  the  conclusion 
that  they  are  libels  and  are  such  as  would  have  a  tendency  to  preju- 

"See  McDonald  v.  Sun  Publishing  Co.,  Ill  App.  Div.  (N.  Y.)  467 
(1906),  two  later  attacks  by  the  same  paper  on  the  same  plaintiff  as  in  the 
principal  case,  the  latter  of  them  insinuating  that  his  researches  were  merely 
a  pretext  for  gratifying  his  indecent  curiosity  and  lubricity,  and  Triggs  v. 
Sun  Printing  and  Publishing  Co.,  179  N.  Y.  144  (1904),  in  all  of  which  the 
artkles  were  held  to  go  clearly  beyond  the  limit  of  fair  comment.  In  the 
last  case  it  was  said  that  "the  critic  .  .  .  can  not  allow  himself  to  run 
into  reckless  and  unfair  attacks  merely  for  the  purpose  of  exercising  his 
power  of  denunciation ;"  compare  the  statement  of  Collins,  M.  R.  in  Mc- 
Quire  v.  Western  Morning  News.  L.  R.  1903,  2  K.  B.  100,  that  "Criticism 
can  not  be  used  as  a  cloak  for  mere  invective." 

A  charge  of  plagiarism  is  undoubtedly  an  attack  on  the  character  of  an 
author  as  author,  and  was  held  actionable  in  Dibdin  v.  Swan,  1  Esp.  28 
(1792),  and  see  McLellan  v.  Dufton,  London  Times,  May  23  (1906),  and 
Bower,  Actionable   Defamation,   Appendix    XII,   sec.  6. 


1132 


HUNT   Z\    STAR    NEWSPAPER    CO. 


dice  the  plaintiff  in  his  position  of  town  clerk  of  Westminster  and  of 
presiding  officer  and  deputy  returning  officer  of  the  county  council 
elections,  then  you  must  give  him  your  verdict.  Then  the  next  ques- 
tion is,  whether  the  defense  is  made  out  that  the  accounts  given  in 
these  two  articles  of  what  happened  at  the  Caxton  Hall  on  this  oc- 
casion were  true  in  substance,  and  in  fact,  as  far  as  they  related  to 
the  details  of  what  took  place  at  the  Caxton  Hall.  Then,  as  far  as 
comment  is  concerned,  you  will  consider  whether  that  comment  is 
fair  and  bona  fide  comment,  or  whether  it  is  for  the  purpose  of  sug- 
gesting, as  is  alleged  by  the  plaintiff,  that  he  was  acting  in  an  im- 
proper way."  I  regret  that  no  separate  questions  werci  left  to  the 
jury.  A  general  verdict  was  found  in  favor  of  the  plaintiff  with 
iSoo  damages.  Now  it  seems  to  me  that  the  learned  judge  did  not 
properly  direct  the  jury  as  to  the  meaning  and  effect  of  the  plea  of 
fair  comment.  The  words  which  I  have  read  seem  to  indicate  that 
that  cannot  be  fair  comment  which  tends  to  prejudice  or  to  impute 
blame  to  the  plaintiff.  In  my  opinion  that  is  not  the  law.  I  cannot 
do  better  than  adopt  the  language  of  Kennedy,  J.,  in  Joynt  v.  Cycle 
Trade  Publishing  Co.,  (1904)  2  K.  B.  292,  "The  comment  must. . . 
not  misstate  facts,  because  a  comment  cannot  be  fair  which  is  built 
upon  facts  which  are  not  truly  stated,  and,  further,  it  must  not 
convey  imputations  of  an  evil  sort,  except  so  far  as  the  facts,  truly 
stated,  warrant  the  imputation."  And  in  Dakhyl  v.  Lahoucherc, 
Lord  Atkinson  said :  "A  personal  attack  may  form  part  of  a  fair 
comment  upon  given  facts  truly  stated  if  it  be  warranted  by  those 
facts — in  other  words,  in  my  view,  if  it  be  a  reasonable  inference 
from  those  facts.  Whether  the  personal  attack  in  any  given  case 
can  reasonably  be  inferred  from  the  truly  stated  facts  upon  which 
it  purports  to  be  a  comment  is  a  matter  of  law  for  the  determina- 
tion of  the  judge  before  whom  the  case  is  tried,  but  if  he  should 
rule  that  this  inference  is  capable  of  being  reasonably  drawn,  it  is 
for  the  jury  to  determine  whether  in  that  particular  case  it  ought  to 
be  drawn."  In  substance  it  seems  to  me  that  the  issue  of  fair  com- 
ment was  not  left  to  the  jury.  It  is  highly  probable  that  the  jury 
thought  that  the  facts  were  not  truly  stated,  in  which  case  the  ver- 
dict for  the  plaintiff  would  be  plainly  justified;  but  it  is  also  possible 
that  they  thought  that,  although  the  facts  were  truly  stated,  they 
must,  as  the  learned  judge  told  them,  find  for  the  plaintiff,  if  in  the 
view  of  the  jury  the  articles  in  question  imputed  improper  conduct 
to  the  plaintiff.  In  my  opinion  the  defendants  are  entitled  to  have 
a  new  trial  in  which  both  the  issues  raised  by  them  may  be  pre- 
sented to  a  jury  with  a  proper  and  adequate  direction.  There  must 
be  an  order  for  a  new  trial,  but  under  the  circumstances  I  think  the 
costs  of  this  appeal,  as  well  as  of  the  first  trial,  should  abide  the  re- 
sult of  the  second  trial. 

Fletcher  Moulton,  L.  J.  With  the  greater  part  of  the  argu- 
ment that  was  addressed  to  us  by  counsel  for  the  appellants  in  this 
case  I  thoroughly  disagree.  That  argument  was  based  mainly  upon 
an  application  of  the  language  of  the  judgment  in  Merivale  v.  Car- 
son, 20  Q.  B.  D.  275,  at  p.  231,  to  the  case  of  the  imputation  or  cor- 


HUNT    V.    STAR    NEWSPAPER    CO.  1 1 35 

rupt  or  disgraceful  motives  to  an  individual,  and  the  contention  was 
that,  if  in  his  comment  upon  facts  a  writer  attributed  such  motives 
to  an  individual,  such  language  was  covered  by  the  plea  of  fair 
comment  unless  the  views  it  expressed  could  not  be  held  by  any  fair 
man,  however  prejudiced  he  might  be  and  however  exaggerated 
and  obstinate  his  views.  In  my  opinion  this  is  a  complete  misappre- 
hension of  the  law  as  laid  down  by  that  case,  and  is  absolutely  op- 
posed to  what  is  now  settled  law  with  regard  tb  fair  comment.  The 
case  of  Merwale  v.  Carson,  supra,  related  to  a  criticism  upon  a 
play,  and  not  to  a  question  of  libel  on  personal  character,  and  the 
language  of  the  judgments  in  that  case  shows  that  both  the  eminent 
judges  who  decided  it  intended  to  deal  with  literary  criticism.  The 
law  laid  down  by  the  decision  in  that  case  has,  therefore,  nothing  to 
do  with  personal  libels  such  as  that  imputation  of  disgraceful  mo- 
tives to  an  individual.  In  order  to  demonstrate  this  it  is  only  neces- 
sary to  quote  what  may  be  said  to  be  the  leading  passage  in  the 
judgment  of  Lord  Esher.  He  says  :  "What  is  the  meaning  of  a  'fair 
comment'?  I  think  the  meaning  is  this.  Is  the  article  in  the  opinion 
of  the  jury  beyond  that  which  any  fair  man,  however  prejudiced  or 
however  strong  his  opinion  may  be,  would  say  of  the  work  in  ques- 
tion? Every  latitude  must  be  given  to  opinion  and  to  prejudice,  and 
then  an  ordinary  set  of  men  with  ordinary  judgment  must  say 
whether  any  fair  man,  would  have  made  such  a  comment  on  the 
work.  It  is  very  easy  to  say  what  clearly  would  be  beyond  the  limit. 
If,  for  instance,  the  writer  attacked  the  private  character  of  the 
author."  With  this  language  as  applied  to  literary  criticism,  I  fully 
agree,  but  it  gives  no  support  to  the  contention  of  the  counsel  for  the 
appellants  in  the  present  case,  seeing  that  we  have  here  to  deal  with 
imputations  of  motives  which  unquestionably  amount  to  attacks  on 
the  character  of  the  plaintiff. 

The  law  as  to  fair  comment,  so  far  as  is  material  to  the  present 
case,  stands  as  follows :  In  the  first  place,  comment  in  order  to  be 
justifiable  as  fair  comment  must  appear  as  comment  and  must  not 
be  so  mixed  up  with  the  facts  that  the  reader  cannot  distinguish 
between  what  is  report  and  what  is  comment ;  see  Andrezvs  v.  Chap- 
man, (1853)  3  C.  &  K.  286.  The  justice  of  this  rule  is  obvious. 
If  the  facts  are  stated  separately  and  the  comment  appears  as  an 
inference  drawn  from  those  facts,  any  injustice  that  it  might  do  will 
be  to  some  extent  negatived  by  the  reader  seeing  the  grounds  upon 
which  the  unfavorable  inference  is  based.  But  if  fact  and  comment 
be  intermingled  so  that  it  is  not  reasonably  clear  what  portion  pur- 
ports to  be  inference,  he  will  naturally  suppose  that  the  injurious 
statements  are  based  on  adequate  grounds  known  to  the  writer 
though  not  necessarily  set  out  by  him.  In  the  one  case  the  insuffi- 
ciency of  the  facts  to  support  the  inference  will  lead  fair-minded 
men  to  reject  the  inference.  In  the  other  case  it  merely  points  to  the 
existence  of  extrinsic  facts  which  the  writer  considers  to  warrant 
the  language  he  uses.  In  this  relation  I  must  express  my  disagree- 
ment with  the  view  apparently  taken  by  the  Court  of  Queen's 
Bench  in  Ireland  in  the  case  of  Lcfroy  v.  Bnrnsidc,  4  L.  R.  Ir.  C. 


tI34  HUXT    Z'.    STAR    NEWSPAPER    CO. 

L.  556,  where  the  imputation  was  that  the  plaintiffs  dishonestly  and 
corruptly  supplied  to  a  newspaper  certain  information.  The  court 
treated  the  qualifications  "dishonestly"  or  "corruptly"  as  clearly 
comment.  In  my  opinion  they  are  not  comment,  but  constitute  alle- 
gations of  fact.  It  would  have  startled  a  pleader  of  the  old  school 
if  he  had  been  told  that,  in  alleging  that  the  defendant  "fraudulently 
represented,"  he  was  indulging  in  comment.  By  the  use  of  the  word 
"fraudulently"  he  was  probably  making  the  most  important  allega- 
tion of  fact  in  the  whole  case.  Any  matter,  therefore,  which  does 
not  indicate  with  a  reasonable  clearness  that  it  purports  to  be  com- 
ment, and  not  statement  of  fact,  cannot  be  protected  by  the  plea  of 
fair  comment.  In  the  next  place,  in  order  to  give  room  for  the  plea 
of  fair  comment,  the  facts  must  be  truly  stated.  If  the  facts  upon 
which  the  comment  purports  w  be  made  do  not  exist  the  foundation 
of  the  plea  fails. 

Finally,  comment  must  not  convey  imputations  of  an  evil  sort 
except  so  far  as  the  facts  truly  stated  warrant  the  imputation.  This 
is  the  language  of  Kennedy  J.  in  Joynt  v.  Cycle  Trade  Publishing 
Co.  It  is  based  on  the  judgments  in  Campbell  v.  Spoffiszvoode,  3  B. 
&  S.  769,  a  case  of  the  highest  authority,  and  is,  in  my  opinion,  un- 
questionably a  true  statement  of  the  law.  The  only  portion  of  the 
statement  which  requires  examination  is  the  phrase  "except  so  far 
as  the  facts  truly  stated  warrant  the  imputation."  Speaking  for  my- 
self, the  words  "warrant  the  imputation"  can  bear  but  one  meaning, 
and  that  meaning  is  stated  so  plainly  by  Lord  Atkinson  in  the  opin- 
ion delivered  by  him  in  the  case  of  Dakhyl  v.  Labonchere.  In  other 
words  a  libellous  imputation  is  not  warranted  by  the  facts  unless 
the  jury  hold  that  it  is  a  conclusion  which  ought  to  be  drawn  from 
those  facts.  Any  other  interpretation  would  amount  to  saying  that, 
where  facts  were  only  sufficient  to  raise  a  suspicion  of  a  criminal  or 
disgraceful  motive,  a  writer  might  allege  such  motive  as  a  fact  and 
protect  himself  under  the  plea  of  fair  comment.  No  such  latitude  is 
allowed  by  English  law.  To  allege  a  criminal  intention  or  a  dis- 
reputable motive  as  actuating  an  individual  is  to  make  an  allegation 
of  fact  which  must  be  supported  by  adequate  evidence.  I  agree 
that  an  allegation  of  fact  may  be  justified  by  its  being  an  inference 
from  other  facts  truly  stated,  but,  as  Lord  Atkinson  says  in  tihe 
passage  just  quoted,  in  order  to  warrant  it  the  jury  must  be  satis- 
fied that  such  inference  ought  to  be  drawn  from  those  facts. 

Applying  this  law  to  the  facts  of  the  present  case,  I  would  say, 
first,  that  I  have  a  great  doubt  whether  there  is  anything  in  the  pub- 
lication complained  of  which  can  fairly  be  called  comment  at  all, 
unless  it  be  the  headlines  of  the  second  article.  All  the  rest  appears 
to  me  to  purport  to  be  statement  of  fact,  and  therefore,  in  my  opin- 
ion, the  defendants  could  only  succeed  by  establishing  their  plea  of 
justification  with  respect  to  it.  I  have  great  doubt,  therefore,  wheth- 
er the  learned  judge  ought  to  have  allowed  the  issue  of  fair  comment 
to  go  to  the  jury  at  all  (except,  perhaps,  as  to  those  headlines.) 
But  the  judge  permitted  it  to  go  to  the  jury,  and,  therefore,  he  was 
bound  to  give  them  a  proper  direction  as  to  it.     In  my  opinion  the 


I 


BURT   V.    ADVERTISER    NEWSPAPER    CO.  1 135 

direction  he  gave  was  so  expressed  as  to  bear  a  meaning  which  might 
have  misled  the  jury  and  affected  their  verdict,  and  as  it  was  a  gen- 
eral verdict,  not  distinguishing  the  issues,  but  giving  a  sum  by  way 
of  damages  in  respect  of  both,  we  have  no  alternative  but  to  send  the 
case  back  for  a  new  trial,  because  it  is  impossible  to  say  to  what  ex- 
tent the  verdict  may  have  been  influenced  by  such  misdirection. 

Buckley,  L.  J.  Comment  which  tends  to  prejudice  may  still 
be  fair ;  it  may  convey  imputations  of  bad  motive  so  far  as  the  facts 
truly  stated  justify  such  an  imputation.  It  is  for  the  jury  to  say 
whether  the  facts  justify  the  imputation  or  not.  The  fault  here  is 
that  that  question  has  never  properly  been  left  to  them.  The  ques- 
tion for  the  jury  is  whether  the  comment  is  in  their  opinion  beyond 
that  which  a  fair  man,  however  extreme  might  be  his  views  in  the 
matter,  might  make  honestly  and  without  malice,  and  which  was  not 
without  foundation.  The  defense  of  fair  comment  extends  to  the 
imputation  of  motives.  Cockburn,  C.  J.  in  Wason  v.  Walter,  (1868) 
L.  R.  4  Q.  B,  73,  at  p.  93,  speaking  of  the  development  of  the  law  of 
libel,  says :  "The  full  liberty  of  public  writers  to  comment  on  the 
conduct  and  motives  of  public  men  has  only  in  very  recent  times 
been  recognized."^  Whether  the  criticism  be  upon  a  literary  pro- 
duction or  the  conduct  of  a  public  man,  it  is  for  the  jury,  I  think,  to 
find  whether  the  imputation  based  upon  facts  truly  stated,  does  or 
does  not,  honestly  represent  the  opinion  of  the  person  who  gives  ex- 
pression to  it  and  was  not  without  foundation.^ 


BURT  V.  ADVERTISER  NEWSPAPER  CO. 

Supreme  Judicial  Court  of  Massachusetts,  1891.     154  Mass.  Rep.  238. 

Holmes,  J.  The  first  question  which  we  shall  consider  is  raised 
by  the  presiding  judge's  refusal  to  rule  that  the  articles  were  privi- 
leged. The  requests  referred  to  each  article  as  a  whole.  _  Each 
article  contained  direct  and  indirect  allegations  of  fact  touching  the 
plaintiff,  and  highly  detrimental  to  him,  charging  him  with  being  a 
party  to  alleged  frauds  in  the  New  York  custom-house.  Some  or 
all  of  these  allegations  we  must  take  to  be  false.  In  our  opinion  the 
rulings  asked  were  properly  refused. 

We  agree  with  the  defendant,  that  the  subject  was  of  public  in- 
terest, and  that  in  connection  with  the  administration  of  the  custom- 

'In  R.  V.  Cobbett,  29  How.  St.  Tr.  1  (1804),  Lord  Enenborough  charged 
the  jury,  p.  49,  that,  "If  a  publication  be  calculated  to  alienate  the  affections 
of  the  people,  by  bringing  the  government  into  disesteem,  whether  the  ex- 
pedient be  by  ridicule  or  obloquv."  it  was  a  criminal  libel. 

'Accord:  Dunneback  v.  Tribune  Co..  108  Mich.  75  (1895),  inference, 
from  fact  that  the  treasurer's  sureties  objected  to  plaintiff's  appointment 
as  deputy,  that  they  did  not  wish  to  be  responsible  for  public  funds  if  the 
plaintiff  had  any  share  in  handling  them,  held  justifiable,  see  Hooker  J.  dis- 
senting: Howarth  v.  Barlow.  113  App.  Div.  (N.  Y.)  510  (1906),  accusations 
against  a  clerk  of  a  village  board  of  intent  to  defraud;  and  see  Neeb  v. 
Hope  111  Pa.  St.  145  (1885),  p.  153. 


1 136  BURT   V.    ADVERTISER    NEWSPAPER    CO. 

house  the  defendant  would  ha\e  a  right  to  make  fair  comments  on 
the  conduct  of  private  persons  affecting  that  administration  in  the 
way  alleged.  But  there  is  an  important  distinction  to  be  noticed 
between  the  so-called  privilege  of  fair  criticism  upon  matters  of 
public  interest,  and  the  privilege  existing  in  the  case,  for  instance, 
of  answers  to  inquiries  about  the  character  of  a  servant.  In  the 
latter  case  a  bona  fide  statement  not  in  excess  of  the  occasion  is 
privileged,  although  it  turns  out  to  be  false.  In  the  former,  what  is 
privileged,  if  that  is  the  proper  term,  is  criticism,  not  statement,  and 
however  it  might  be  if  a  person  merely  quoted  or  referred  to  a 
statement  as  made  by  others,  and  gave  it  no  new  sanction,^  if  he 
takes  upon  himself  in  his  own  person  to  allege  facts  otherwise 
libelous,  he  will  not  be  privileged  if  those  facts  are  not  true.  The 
reason  for  the  distinction  lies  in  the  different  nature  and  degree  of 
the  exigency  and  of  the  damage  in  the  two  cases.  In  these,  as  in 
many  other  instances,  the  law  has  to  draw  a  line  between  conflicting 
interests,  both  intrinsically  meritorious.  When  private  inquiries  are 
made  about  a  private  person,  a  servant,  for  example,  it  is  often  im- 
possible to  answer  them  properly  without  stating  facts,  and  those 
who  settled  the  law  thought  it  more  important  to  preserve  a  reason- 
able freedom  in  giving  necessary  information  than  to  insure  people 
against  occasional  unintended  injustice,  confined  as  it  generally  is  to 
one  or  two  persons.  But  what  the  interests  of  private  citizens  in 
public  matters  requires  is  freedom  of  discussion  rather  than  of  state- 
ment. Moreover,  the  statements  about  such  matters  which  come 
before  the  courts  are  generally  public  statements,  where  the  harm 
done  by  a  falsehood  is  much  greater  than  in  the  other  case.  If  one 
private  citizen  wrote  to  another  that  a  high  official  had  taken  a  bribe, 
no  one  would  think  good  faith  a  sufficient  answer  to  an  action.  He 
stands  no  better,  certainly,  when  he  publishes  his  writing  to  the 
world  through  a  newspaper,  and  the  newspaper  itself  stands  no  bet- 
ter than  the  writer.    Sheckell  v.  Jackson,  10  Cush.  25,  26.^ 


'In  Mangena  v.  Wright,  100  L.  T.  960  (1909),  Phillimore,  J.,  held  that 
such  comment  is  protected.  Fair  comment  on  the  statements,  though  in 
fact  untrue,  in  a  public  document  or  in  the  accurate  report  of  judicial  or 
legislative  proceedings,  the  publication  or  reporting  of  which  is  itself,  by 
statute  or  b}^  common  law,  privileged,  whether  published  by  the  defendant 
himself  or  another,  are  protected,  Mangena  v.  Wright,  supra,  aliter  where 
thev  are  contained  in  the  report  of  proceedings  of  a  vestry,  the  publication  of 
which  is  not  privileged,  Popham  v.  Pickbtirn,  7  H.  &  N.  891  (1862).  But  the 
comment  must  be  fair,  see  Metcalf  v.  Times  Publishing  Co.,  ante. 

-Accord:  Joynt  v.  Cycle  Trade  Publishing  Co.,  L.  R.  1904,  2  K.  B.  292; 
Davis  v.  Shcpsfone,  L.  R.  11  A.  C.  187  (1886)  ;  Digbv  v  Financial  News,  L.  R. 
1907,  1  K.  B.  502;  Walker  v.  Hodgson.  L.  R.  1909,  1  K.  B.  239;  Hunt  v.  Star 
Ncivspaper,  post;  Hubbard  v.  Alhn,  200  Mass.  166  (1908)  ;  Hay  v.  Rcid.  85 
Mich.  296  (1891)  ;  Martin  v.  Payne,  69  Minn.  482  (1897)  ;  Farley  v.  McBridc. 
74  Xebr.  49  (1905)  :  Fry  v.  Bennett,  5  Sandf.  54  (N.  Y.  1851)  ;  and  see  Barr  v. 
Moore,  87  Pa.  St.  385  (1878),  and  Neeb  v.  Hope,  111  Pa.  St.  145  (1885).  Nor 
is  comment  fair  which  is  based  on  non-existent  facts,  whether  asserted  by 
the  defendant  or  assumed  by  him  to  be  true.  Digby  v.  Financial  News.  Hub- 
bard V.  AUeyn,  Lefroy  v.  Burnside,  Fry  v.  Bennett,  5  Sandf.  54  (N.  Y.  1851), 
and  compare  cases  cited  in  Note  2  to  Carr  v.  Hood. 

"To  say  that  you  may  first  libel  a  man  and  then  comment  upon  him  is 


EIKHOFF    V.    GILBERT.  1 137 

EIKHOFF  V.  GILBERT. 

Supreme  Court  of  Michigan,  1900.     124  Michigan,  353. 

Hooker,  J.  The  defendants  are  memb'brs  of  an  organization 
called  the  "Good  Government  League,"  in  the  city  of  Detroit,  which 
professes  to  have  for  its  object  the  election  of  worthy  men  to  office, 
and  the  promotion  of  good  order  and  honest  administration  of  city 
affairs.  The  plaintiff,  having  attended  one  session  of  the  legislature 
in  the  capacity  of  representative,  was  a  candidate  for  re-election. 
This  action  was  for  libel,  alleged  to  have  consisted  of  three  publica- 
tions over  the  names  of  the  defendants.  One,  for  convenience 
called  the  "White  Circular,"  was  addressed  to  the  voters,  and  con- 
tained in  parallel  columns  the  names  of  several  candidates  whom 
the  electors  were  advised  to  vote  for  or  against.  The  portion  appli- 
cable to  the  plaintiff  was  as  follows : 

VOTE 
FOR  AGAINST 

Harry  C.  Barter  for  Repre-  Henry  Eikhoff  for  Repre- 
sentative, because  he  represents  sentative,  because  in  the  last 
all  that  is  good  in  his  opponent,  legislature  he  championed  meas- 
and  does  not  represent  the  ob-  ures  opposed  to  the  moral  inter- 
jectionable.  He  is  the  champion  ests  of  the  community, 
of  labor  and  arbitration. 

The  question  before  us  is  whether  the  case  should  have  been 
submitted  to  the  jury  upon  one  or  both  counts.  The  first  charge  is, 
in  substance,  that  the  plaintiff,  in  his  official  capacity  of  representa- 
tive, championed  measures  opposed  to  the  moral  interests  of  the 
community.  The  undisputed  testimony  shows  that  as  representa- 
tive he  introduced,  and,  to  some  extent,  at  least,  approved  and  sup- 
ported, measures  calculated  to  change  the  liquor  laws  of  the  state 
by  permitting  sales  on  legal  holidays,  and  election  days  after  the 
close  of  the  polls,  and  by  repealing  the  act  prohibiting  screens  in 
saloons.    The  court  charged  the  jury  that: 

The  language  of  the  white  circular,  unexplained,  unequivocally 
charged  the  plaintiff  with  having  championed  legislation  opposed  to 
the  moral  interests  of  the  community.     This  charge  is  an  attack 

obviously  absurd,"  Cockburn,  C.  J.,  Queen  v.  Garden,  L.  R.  1879,  5  Q.  B.  D. 
1,  p.  8.  "If  the  defendant  makes  a  misstatement  of  any  of  the  facts  upon 
which  he  comments,  it  at  once  negatives  the  possibility  of  his  comment 
being  fair.  It  is  therefore  a  necessary  part  of  the  plea  of  fair  comment  to 
show  that  there  has  been  no  misstatement  of  facts  in  the  statement  of  the 
materials  on  which  the  comment  was  based,"  Collins,  M.  R.  in  Digby  v.  Finan- 
cial News,  L.  R.  1907,  1  K.  B.  502.  So  Ducr,  J.  says  in  Frv  v.  Bennett.  . 
5  Sandf.  54  (N.  Y.  1851),  "the  truth  of  the  facts  upon  which"'  (the  critical 
animadversions)  "were  founded,  must  be  established  or  admitted  .  .  . 
the  defenses  of  truth  and  privilege  are  inseparably  connected ;"  see  also, 
Palles,  C.  B.  in  Lefroy  v.  Burnside,  supra.  As  to  the  distinction  between 
a  plea  of  justification  and  a  plea  of  fair  comment,  see  Collins,  M.  R.  in 
Digby  v.  Financial  News,  L.  R.  1907,  1  K.  B.  502. 


I  138  EIKHOFF    V.    GILBERT. 

upon  his  moral  character,  and  would  be  likely  to  bring  him  into 
public  contempt  and  disgrace.  It  is,  therefore,  libelous  per  sc.  The 
defense  made  was :  First,  that  the  statement  was  true ;  and,  second, 
that,  if  it  cannot  be  said  to  be  true,  the  proven  acts  were  subject  to 
criticism,  and  the  defendants  had  the  right  to  express  their  opinion 
as  to  their  effect — in  other  Avords,  that  the  language  was  privileged. 
The  defendants  had  a  right  to  discuss  the  fitness  of  the  plaintiff 
for  the  office  to  which  he  aspired,  and  might  lawfully  communicate 
to  the  electors  any  facts  within  their  knowledge  concerning  his  char- 
acter or  conduct,  and  express  their  opinions  upon  them,  and  their 
inferences  deduced  from  them,  so  long  as  they  stated  as  facts  only 
the  truth,  and  as  opinions  and  inferences  therefrom  only  honest  be- 
lief. The  fault  here,  if  there  be  one,  is  that  opinions  and  inferences 
were  not  stated  as  such,  but  as  facts.  The  defendants  sought  to 
justify  the  statement  made,  viz.,  that  the  plaintiff'  championed  meas- 
ures opposed  to  the  moral  interests  of  the  community,  by  proving 
that  he  supported  the  two  measures  stated.  To  the  minds  of  some, 
that  would  be  sufficient  to  establish  the  truth  of  the  charge.  Others 
would  think  otherwise.  •  It  is  manifest,  therefore,  that  we  cannot 
say,  as  a  legal  proposition,  that  the  undisputed  testimony  estab- 
lishes the  truth  of  the  broad  charge.  Evidently  the  learned  circuit 
judge  took  this  view.  It  is  evident  that  the  acts  proved  were  suffi- 
cient to  induce  in  the  minds  of  some  the  opinion  that  the  plaintiff 
had  supported  measures  opposed  to  the  moral  interests  of  the  com- 
munity. The  judge  therefore  instructed  the  jur.y  that  such  persons 
were  privileged  to  say  so,  and  directed  a  verdict  for  defendants. 
But,  admitting  that  tliey  were  privileged  to  express  their  opinions 
concerning  certain  acts,  was  this  what  was  done?  Did  they  not  go 
further,  and  do  more  ?  They  did  not  state  what  measures  were  sup- 
ported, and  their  opinions  of  that  particular  conduct,  but  said  gen- 
erally and  unqualifiedly,  as  a  fact,  that  the  plaintiff  had  arrayed 
liimself  against  the  moral  interests  of  the  community,  which,  if 
true,  should  discredit  him  with  any  voter  who  should  believe  the 
statement.  It  appealed  alike  to  all  classes — those  who  should  look 
upon  the  legislation  proven  as  not  opposed  to  the  moral  interests 
of  the  community  as  well  as  those  holding  contrary  views ;  and  it 
afforded  no  one  an  opportunity  to  judge  whether  the  statement  was 
a  proper  deduction  from  the  fact  upon  which  it  was  based  or  not. 
If  one  states  that  a  candidate  is  a  thief,  without  qualification,  he 
communicates  a  fact  pertaining  to  his  fitness ;  but  it  is  a  slander  if 
untrue,  whether  it  was  made  in  good  faith  or  not,  although,  had  he 
stated  the  exact  facts,  and  expressed  the  opinion  that  they  amounted 
to  stealing,  though  they  did  not  technically  constitute  the  offense  of 
larceny,  the  communication  might  be  privileged.^ 


'See  also.  Little  John  v.  Greeley,  13  Abb.  Pr.  41  (N.  Y.  1861),  statement 
that  the  plaintiff  "was  prominent  in  the  corrupt  legislation  of  last  winter," 
see  also,  Crows  Nest  Pass  Coal  Co.  v.  Bell,  4  Ont.  L.  R.  660  (1902),  and 
Champagne  v.   Beauchamp,  31   Lower   Can.  J.   144    (1886). 

A  characterization  of  another's  conduct  as  dishonorable,  the  facts  known 
to  the  defendant  being  only  partially  stated,  was  held  in  Christie  v.  Robert- 


O  BRIEX    7'.     MARQUIS    OF    SALISBURY.  1139 

FIELD,  J.,  in  O'BRIEN  t'.  MARQUIS  OF  SALISBURY. 

54  Juslicc  of  the  Peace,  215   (1890),  p.  216. 

"Comment  may  sometimes  consist  in  the  statement  of  a  fact,  and 
may  be  held  to  be  comment  if  the  fact  so  stated  appears  to  be  a  de- 
duction or  conclusion  come  to  by  the  speaker  from  other  facts  stated 
or  referred  to  by  him,  or  in  the  common  knowledge  of  the  person 
speaking  and  those  to  whom  the  words  are  addressed,  and  from 
which  his  conclusion  may  be  reasonably  inferred.  If  a  statement 
in  words  of  a  fact  stands  by  itself  naked,  without  reference,  either 
expressed  or  understood,  to  other  antecedent  or  surrounding  cir- 
cumstances notorious  to  the  speaker  and  to  those  to  whom  the  words 
are  addressed,  there  would  be  little,  if  any,  room  for  the  inference 
that  it  was  understood  otherwise  than  as  a  bare  statement  of  fact, 
and  then,  if  untrue,  there  would  be  no  answer  to  the  action ;  but  if, 
although  stated  as  a  fact,  it  is  proceeded  or  accompanied  by  such 
other  facts,  and  it  can  be  reasonably  based  upon  them,^  the  words 
may  be  reasonably  regarded  as  comment,  and  comment  only,  and, 
if  honest  and  fair,  excusable ;  and  whether  it  is  to  be  regarded  as 
fact  or  comment  it  is  a  question  for  the  jury,  to  be  determined  by 
them  upon  all  the  circumstances  of  the  case," 

son,  10  N.  S.  W.  L.  R.  157  (1889),  to  be  "misdescription.  Real  comment  is 
merely  the  expression  of  opinion.  Misdescription  is  matter  of  fact.  To  state 
accurately  what  a  man  has  done,  and  then  to  say  that  in  your  opinion  such 
conduct  is  dishonorable  or  disgraceful,  is  comment  which  may  do  no  harm, 
as  every  one  can  judge  for  himself  whether  the  opinion  expressed  is  well- 
founded  or  not.  Misdescription  of  conduct,  on  the  other  hand.  leaves  the 
reader  no  opportunity  for  judging  for  himself  of  the  character  of  the 
conduct  of  the  condemned,  nothing  but  a  false  picture  being  presented  for 
judgment ;"  Windeyer,  J.,  p.  161.  Where  the  facts  arc  stated  fully  and 
accurately  "the  writer  may,  by  his  opinion,  libel  himself  rather  than  the 
subject  of  his  remarks;"  Wilde,  B..  Pophant  v.  Pickburn,  7  H.  &  N.  891 
(1862)  ;  Grant,  J.,  Belknap  w.  Ball,  83  Mich.  583   (1890).  p.  589. 

Any  general  characterization  of  the  plaintiff's  conduct  or  qualification 
for  office,  without  giving  any  grounds  therefor,  is  a  statement  of  fact  and 
not  fair  comment,  Broadbcnt  V.  Small,  2  Vict.  L:  R.  121  (1876);  see  Archer 
V.  Ritchie  c'r  Co.,  18  Rettie  719  (Sc.  Ct.  of  Sess.  1891),  p.  727.  Many  of  the 
cases  which  hold  that  the  motives  of  a  public  officer  can  not  be  attacked 
are  cases  of  this  sort;  see  cases  cited  in  Clifton  v.  Lange,  post,  Note  1. 

^  See  Cooper  v.  Lawson,  8  A.  &  E.  746  (1838),  in  which,  after  stating 
that  the  plaintiff  had  become  surety  for  an  election  petition  and  that  he  was 
in  circumstances  making  him  unfit  to  become  a  surety,  the  defendant  asked 
why  this  "cockney  tailor"  took  all  this  trouble  and  risk  of  exposure  in  a 
matter  with  which  he  had  nothing  to  do,  and  said  the  only  answer  was  that 
he  was  "hired  for  the  occasion."  This  was  held  not  to  be  a  "mere  shadow 
of  previous  imputation"  but  to  infer  a  new  fact. 

In  many  of  the  cases  in  which  it  is  held  that  the  motives  of  a  candidate 
or  public  man  may  not  be  attacked  and  that  criminal  misconduct  may  not  be 
imputed  to  him  are  cases  of  this  sort,  where  the  plaintiflf's  conduct  is  ex- 
plained by  the  assertion  of  an  act  done  by  him  or  another  or  both.  Bee  Pub- 
lishing Co.  V.  Shields,  68  Nebr.  750  (1903),  conduct  of  a  district  attorney 
ascribed  to  his  having  been  bribed;  Hamilton  v.  Eno,  81  N.  Y.  116  (1880), 
allegation  that  an  official  writing  a  report  on  street  paving  was  employed 
by  one  of  the  paving  companies  interested. 

See  also.  Commercial  Publishing  Co.  v.  Smith,  149  Fed.  704  (C.  C.  A. 
6th  Circ.  1907),  where  the  plaintiff's  guilt  was  assumed  from  the  mere  fact 


1 140  TOOGOOD    7'.    SPVRING. 

SECTION  5. 
Abuse  of  Conditional  Immunity. 


(a)  Excessive  publication. 


TOOGOOD  v.  SPYRING. 
.  Court  of  Exchequer,  1834.     1  Crompton,  Meeson  &  Roscoes,  181. 

Parke,  B.  In  this  case,  which  was  argued  before  my  Brothers 
Bolland,  Alderson,  Giirnev  and  myself,  a  motion  was  made  for  a  non- 
suit, or  a  new  trial,  on  the  ground  of  misdirection.  It  was  an  action 
of  slander,  for  words  alleged  to  be  spoken  of  the  plaintiff  as  a  jour- 
neyman carpenter,  on  three  different  occasions.  It  appeared  that 
the  defendant,  who  was  a  tenant  of  the  Earl  of  Devon,  required 
some  work  to  be  done  on  the  premises  occupied  by  him  under  the 
Earl,  and  the  plaintiff*,  who  was  generally  employed,  by  Brinsdon, 
the  Earl's  agent,  as  a  journeyman,  was  sent  by  him  to  do  the  work. 
He  did  it,  but  in  a  negligent  manner ;  and,  during  the  progress  of 
the  work,  got  drunk ;  and  some  circumstances  occurred  which  in- 
duced the  plaintiff  to  believe  that  he  had  broken  open  the  cellar 
door,  and  so  obtained  access  to  his  cyder.  The  defendant  a  day  or 
two  afterwards  met  the  plaintiff  in  the  presence  of  a  person  named 
Taylor,  and  charged  him  with  having  broken  open  his  cellar  door 
with  a  chisel,  and  also  with  having  got  drunk.  The  plaintiff  denied 
the  charges.  The  defendant  said  he  would  have  it  cleared  up,  and 
went  to  look  for  Brinsdon ;  he  afterwards  returned  and  spoke  to 
Taylor,  in  the  absence  of  the  plaintiff ;  and,  in  answer  to  a  question 
of  Taylor's,  said  he  was  confident  that  the  plaintiff  had  broken  open 
the  door.  On  the  same  day  the  defendant  saw  Brinsdon,  and  com- 
plained to  him  that  the  plaintiff  had  been  negligent  in  his  work,  had 
got  drunk,  and  he  thought  he  had  broken  open  the  door,  and  re- 
quested him  to  go  with  him  in  order  to  examine  it.  Upon  the  trial 
it  was  objected,  that  these  were  what  are  usually  termed  "privileged 
communications."  The  learned  Judge  thought  that  the  statement 
to  Brinsdon  might  be  so,  but  not  the  charge  made  in  the  presence 
of  Taylor;  and  in  respect  of  that  charge,  and  what  was  afterwards 
said  to  Taylor,  both  of  which  statements  formed  the  subject  of  the 
action,  the  plaintiff  had  a  verdict.  We  agree  in  his  opinion,  that 
the  communication  to  Brinsdon  was  protected,  and  that  the  state- 
ment, upon  the  second  meeting,  to  Taylor,  in  the  plaintiff's  absence, 
was  not ;  but  we  think,  upon  consideration,  that  the  statement  made 
to  the  plaintiff,  though  in  the  presence  of  Taylor,  falls  within  the 
class  of  the  communications  ordinarily  called  privileged ;  that  is, 
cases  where  the  occasion  of  the  publication  affords  a  defense  in  the 
absence  of  express  malice.  In  general,  an  action  lies  for  the  mali- 
cious publication  of  statements  which  are  false  in  fact,  and  injurious 

of  his  arrest  for  murder:  and  Haynes  v.  Clinton  Printing  Co.,  169  Mass 
512  (1897),  where  his  guilt  was  insinuated,  the  facts  recited  being  obviously 
insufficient  grounds  for  such  insinuation. 


TOOGOOn    7'.    SPYRING.  II4I 

to  the  character  of  another  (within  the  well-known  limits  as  to  verbal 
slander),  and  the  law  considers  such  publication  as  malicious,  un- 
less it  is  fairly  made  by  a  person  in  the  discharge  of  some  public  or 
private  duty,  whether  legal  or  moral,  or  in  the  conduct  of  his  own 
affairs,  in  matters  where  his  interest  is  concerned.  In  such  cases, 
the  occasion  prevents  the  inference  of  malice,  which  the  law  draws 
from  unauthorized  communications,  and  affords  a  qualified  defence 
depending  upon  the  absence  of  actual  malice.  If  fairly  warranted  by 
any  reasonable  occasion  or  exigency,  and  honestly  made,  such  com- 
munications are  protected  for  the  common  convenience  and  welfare 
of  society;  and  the  law  has  not  restricted  the  right  to  make  them 
within  any  narrovv?  limits. 

Among  the  many  cases  which  have  been  reported  on  this  sub- 
ject, one  precisely  in  point  has  not,  I  believe,  occurred;  but_  one  of 
the  most  ordinary  and  common  instances  in  which  the  principle  has 
been  applied  in  practice  is,  that  of  a  former  master  giving  the  char- 
acter of  a  discharged  servant ;  and  I  am  not  aware  that  it  was  e\  er 
deemed  essential  to  the  protection  of  such  a  communication  that  it 
should  be  made  to  some  person  interested  in  the  inquiry,  alone,  and 
not  in  the  presence  of  a  third  person.  If  made  with  honesty  of  pur- 
pose to  a  party  who  has  any  interest  in  the  inquiry  (and  that  has 
been  very  liberally  construed  (Child  v.  Affleck,  4  Man.  &  Ryl.  590; 
9  B.  &  C.  403)  ),  the  simple  fact  that  there  has  been  some  casual 
bystander  cannot  alter  the  nature  of  the  transaction.  The  business 
of  life  could  not  be  well  carried  on  if  such  restraints  were  imposed 
upon  this  and  similar  communications,  and  if,  on  every  occasion 
on  which  they  were  made,  they  were  not  protected  unless  strictly 
private.  In  this  class  of  communications  is,  no  doubt,  comprehended 
the  right  of  a  master  bona  Me  to  charge  his  servant  for  any  sup- 
posed misconduct  in  his  service,  and  to  give  him  admonition  and 
blame;  and  we  think  that  the  simple  circumstance  of  the  master 
exercising  that  riglTTin  the  presence  ot  another,  does  by  no  means 
of^necgssTty  take  away  from  it  the  proFecTJon  which  the  Taw  would 
otherwTse.a£[Qrd.  Where,  mdeed,  an  opportunity  is  sought  for  mak- 
ing such  a  charge  b(?fore  third  persons,  which  might  have  been 
made  in  private,  it  would  afford  strong'  evidence  of  a  malicious  in- 
tention, and  thus  deprive  it  of  that  immunity  which  the  law  allows 
to  such  a  statement,  when  made  with  honesty  of  purpose ;  but  the 
mere  fact  of  a  third  person  being  present  does  not  render  the  com- 
munication absolutely  unauthorized/though  it  may  be  a  circum- 
stance to  be  left  with  others,  including  the  style  and  character  of  the 
language  used,  to  the  consideration  of  the  jury,  who  are  to  deter- 
mine whether  the  defendant  has  acted  bona  fide  in  making  the 
charge,  or  been  influenced  by  malicious  motives.  In  the  present 
case,  the  defendant  stood  in  such  a  relation  with  respect  to  the  plain- 
tiff, though  not  strictly  that  of  master,  as  to  authorize  him  to  im- 
pute blame  to  him,  provided  it  was  done  fairly  and  honestly,  for 
any  supposed  misconduct  in  the  course  of  his  employrrent ;  and  we 
think  that  the  fact,  that  the  imputation  was  made  in  Taylor's  pres- 
ence, does  not,  of  itself,  render  the  communication  unwarranted  and 


S.  >^2  KRUSE    V.    RABE. 

otncious,  but  at  most  is  a  circumstance  to  be  left  to  the  considera- 
tion of  the  jury.  We  agree  with  the  learned  Judge,  that  the  state- 
ment to  Taylor,  in  the  plaintiff's  absence,  was  unauthorized  and 
officious,  and  therefore  not  protected,  although  made  in  the  belief 
of  its  truth,  if  it  were,  in  point  of  fact,  false ;  but,  inasmuch  as  no 
damages  have  been  separately  given  upon  this  part  of  the  charge 
alone,  tO  which  the  fourth  count  is  adapted,  we  cannot  support  a 
general  verdict,  if  the  learned  Judge  w^as  wrong  in  his  opinion  as 
to  the  statement  to  the  plaintiff  in  Taylor's  presence ;  and,  as  we 
think  that  at  all  events  it  should  have  been  left  to  the  jury  whether 
the  deferidant  acted  maliciously  or  not  on  that  occasion,  there  must 
be  a  new  trial  Rule  absolute  for  a  new  trial. 


KRUSE  V.  RABE. 
Court  of  Errors  and  Appeals,  1911.    80  N.  J.  L.  378. 

Parrcr,  J.  This  was  a  suit  for  slander.  At  the  trial  there  was 
a  verdict  ^firected  for  the  defendant,  and  this  writ  of  error  is  based 
upon  an  exception  to  that  direction.  The  evidence  w-as  sufficient  to 
justify  the  jury  in  finding  that  the  plaintiff  was  a  real  estate  broker 
doing  business  in  Hoboken,  and  was  employed  under  a  written  con- 
tract by  a  j\Irs.  Vette  to  negotiate  the  sale  of  certain  real  estate  be- 
longing to  her,  in  which  contract  she  agreed  to  pay  him  for  his  serv- 
ices a  commission  of  three  per  cent. ;  that  the  plaintiff"  succeeded  in 
making  a  sale,  and  at  the  time  the  transaction  was  to  be  closed,  the 
plaintiff  and  Mrs.  Vette,  accompanied  by  defendant,  as  her  attorney, 
attended  at  the  office  of  the  attorney  for  the  purchaser,  where  the 
title  was  closed  and  Mrs.  \'ette  was  paid  by  a  check,  and  she  and 
the  plaintiff  and  defendant  went  to  a  neighboring  bank,  of  which 
defendant  was  the  president,  to  cash  the  check  and  pay  plaintiff  his 
commission ;  that  plaintiff  had  procured  from  Mrs.  Vette  a  sort  of 
certificate  that  he  had  negotiated  the  sale  and  had  earned  his  com- 
mission, and  stating  its  amount,  and  that  he  handed  this  when  in 
the  bank  to  Mrs.  Vette,  who  handed  it  to  defendant,  who  "went 
inside"  (probably  inside  the  partition)  for  the  cash  to  pay  plaintiff, 
and  either  on  coming  out  or  before  going  in,  looked  at  the  paper, 
noticed  that  the  amount  was  three  per  cent.,  and  addressing  plain- 
tiff', said  in  a  loud  tone  of  voice  and  in  the  presence  of  the  bank 
clerks  close  by  and  of  several  persons  transacting  business  in  the 
bank,  'T  never  heard  of  any  such  outrageous  commission.  I  know 
a  hundred  real  estate  people  in  this  county  and  none  of  them  charge 
over  two  and  one-half  per  cent."  That  plaintiff'  said,  "Mr.  Rabe, 
will  you  allow  me  to  explain  ?"  and  he  said,  "No,  it  is  simply  this, 
you  have  taken  advantage  of  this  woman."  There  w^as  no  allega- 
tion of  special  damage  in  the  declaration.  Besides  a  plea  of  gen- 
eral issue,  there  were  pleas  of  justification  and  privilege. 

The  court  directed  a  verdict  for  defendant^  without  stating  wdiat 
grounds  such  direction  was  based  on. 

*  The  motion  for  a  direction  of  a  verdict  for  defendant  was  based  upon 
the  grounds — first,  that  the  words  were  not  slanderous  per  se;  secondly,  that 
this  was  a  case  of  a  lawN-er  attempting  to  protect  his  client,  and  that  whatever 


KRUSE   V.    RABE.  ^  II43 

We  think  this  action  of  the  trial  court  was  erroneous. 

It  is  claimed  for  the  defendant  that  the  occasion  was  privileged. 

There  can  be  no  doubt  that  if  Mrs.  Vette  had  asked  Mr.  Rabe, 
as  her  attorney,  in  his  office,  what  he  thought  of  the  amount  of 
plaintiff's  charge,  and  he  had  expressed  himself  to  her  in  response 
to  that  inquiry,  to  the  same  eft'ect  as  he  expressed  himself  to  the 
plaintiff,  with  an  honest  belief  in  the  truth  of  what  he  was  saying, 
his  language  would  then  have  been  privileged.  King  v.  Patterson, 
20  Vroom  417,  438;  Fahr  v.  Hayes,  21  Id.  275,  278.  Butthis  is 
not  what  happened.  The  evidence  seems  to  be  somewhat  in  con- 
flict as  to  whether  Mrs.  Vette  made  any  inquiry  of  Mr.  Rabe  about 
the  rate  or  amount  of  the  commission ;  but  assuming  that  she  did, 
and  that  Rabe  believed  what  he  was  saying,  the  question  still  re- 
mains whether  in  view  of  the  circumstances  under  which,  and  the 
manner  in  which  plaintiff  claims  he  said  it,  the  jury  would  not 
have  been  entitled  to  find  the  presence  of  express  malice.  De- 
fendant's counsel  point  to  Fahr  v.  Hayes,  supra,  as  authority  to 
the  contrary;  and  that  decision,  though  in  the  Supreme  Court  and 
not  binding  on  us,  is  entitled  to  great  weight.  It  goes  very  far  in 
the  protection  of  such  communications  as  privileged  and  in  the  ne- 
gation of  express  malice,  but  it  is  not  dispositive  of  this  case.  In 
Fahr  v.  Hayes  the  plaintiff  was  asking  for  credit  and  gave_ Hayes 
as  a  reference,  this,  in  the  opinion  of  the  Supreme  Court,  justify- 
ing a  confrontation  of  plaintiff'  by  defendant  for  the  purpose  of 
convincing  the  prospective  creditor  of  the  danger  of  trusting  the 
plaintiff.  In  the  case  at  bar,  the  plaintiff  did  not  refer  Mrs.  Vette 
to  Rabe,  and  had  no  part  in  her  consulting  him.  It  was  true  that 
she  was  entitled  to  consult  him  and  he  was  entitled  to  advise  her 
with  entire  freedom  so  long  as  he  did  so  honestly.  But  it  cannot 
be  said  that  a  lawyer  may  shout  to  his  client  in  a  public  place,  ad- 
vice that  a  party  with  whom  the  client  has  been  dealing  has  taken 
advantage  of  him,  and  claim  immunity  under  the  plea  of  priv- 
ilege.   The  rule  is  thus  stated  in  Odgers,  Lib.  &  S.  245  ;  335 : 

"If  the  words  be  spoken  in  the  presence  of  strangers  wholly  un- 
interested in  the  matter,  the  communication  loses  all  privilege.  The 
defendant  in  these  cases  must  be  careful  that  his  words  reach  only 
those  who  are  concerned  to  hear  them.-  Words  of  admonition  or 
confidential  advice  should  be  given  privately,  not  shouted  across 


he  said  was  in  the  course  of  a  conversation  addressed  to  the  client  in  which 
the  plaintiff  took  part;  and  third,  that  if  the  words  were  slanderous,  they  were 
justified. 

=  In  Dale  v.  Harris.  109  Mass.  193  (1872),  an  instruction  that  the  defend- 
ant accusing  the  plaintiff  of  stealing  his  property  was  protected  if  no  other  per- 
sons other  than  themselves  and  a  police  officer  to  whom  the  charge  was  made 
were  present  or  had  taken  reasonable  care  that  no  such  person  should  be 
within  hearing,  was  sufficientlj-  favorable  to  the  defendant;  see  Morton  v. 
Knipe,  128  App.  Div.  94  (N.  Y.  1908),  to  the  effect  that  a  privileged  "occasion 
does  not  protect  one  who  has  made  the  communication  on  the  occasion  know- 
ingly or  carelessly  in  the  hearing  of  those  who  are  not  concerned" ;  but  see 


1 144  KRUSE   V.    RABE. 

the  street,^  or  written  on  postcards,*  or  published  in  the  newspapers.^ 
(^Citing  cases.)  It  is  true  that  the  incidental  presence  of  some  third 
person  will  not  alone  take  the  case  out  of  the  privilege,  if  it  was  un- 
avoidable or  happened  in  the  usual  course  of  business  affairs. **  But 
if  the  defendant  purposely  contrives  that  a  stranger  should  be  pres- 
ent, and  who,  in  natural  course  of  things,  would  not  be  present, 
all  privilege  is  lost.'  (Cases.)  And  whenever  a  defendant  de- 
liberately adopts  a  method  of  communication  which  gives  unneces- 
sary publicity  to  statements  defamatory  of  plaintiff,  the  jury  will  be 
apt  to  infer  malice." 

It  is  this  last  particular  in  which  the  case  at  bar  is  distinguish- 
able from  Fahr  v.  Hayes.  The  publicity  of  the  words  in  that  case 
was  fairly  attributable  to  the  plaintiff's  own  act,  and  was  considered 
by  the  court  to  be  justified  in  consequence,  and  that  malice  was  not 
inferable  therefrom.®  In  the  case  at  bar,  as  already  noted,  the  de- 
fendant, if  plaintiff's  evidence  is  believed,  took  occasion  to  im- 
pugn his  business  integrity  by  addressing  him  and  not  defendant's 
client,  in  a  semi-public  place,  in  a  loud  voice,  and  without  any  in- 
vitation on  his  part.  We  think  this  brings  the  case  within  the  last 
clause  of  the  text  just  quoted,  and  that  the  question  of  express 
malice  should  have  been  left  to  the  jury.  The  judgment  is  ac- 
cordingly reversed  to  the  end  that  a  venire  de  novo  issue.** 


Webber  v.  Vincent,  9  N.  Y.  S.  101  (1890),  where  the  duty  to  communicate 
the  statement  only  to  those  interested  is  stated  as  absolute. 

^Accord:  Oddy  v.  Lord  George  Paulet,  4  F.  &  F.  1009  (1865),  defendant, 
a  customer  at  the  plaintiff's  shop,  stood  in  the  street  outside  the  shop  and 
loudly  took  him  to  task  for  his  alleged  dishonesty.  So  posting  libellous 
placards  or  having  a  defamatory  notice  cried  by  a  town  crier  is  held  to  be 
excessive  publication  and  as  such  evidence  of  malice.  Cheese  v.  Scales,  10  M. 
&  W.  488  (1842)  ;  Woodard  v.  Dozvsing,  2  Man.  &  Ry.  74  (1828). 

*  See  Note  3  to  Edmondson  v.  Birch  &  Co.  Ltd.,  post,  p.  1149. 

°  See  Coleman  v.  MacLennan,  ante,  p.  1070,  and  cases  cited  in  the  note 
thereto. 

'^  Broughton  V.  McGrew,  39  Fed.  672  (1889),  presence  of  an  attorney  al  a 
stockholders'  meeting  held  not  to  destroy  the  shareholder's  right  to  make 
statements  reflecting  on  an  employee's  competencv ;  Fittard  v.  Olii'er,  L.  R. 
1891,  1  Q.  B.  474;  Gildner  v.  Busse,  3  Ont.  L.  R.  561  (1902). 

'Parsons  v.  Surgey,  4  F.  &  F.  247  (1864)  ;  Tavlor  v.  Hawkins,  16  Q.  B. 
308  (1851). 

^ Brow  v.  Hathaway,  13  Allen  239  (Mass.  1866);  Billings  v.  Fairbanks, 
136  Mass.  177  (1883),  with  which  compare  Dale  v.  Harris,  109  Mass.  193 
(1872),  where  the  defendant  made  the  statement  of  his  own  motion,  but  see 
Webber  v.  Vincent,  9  N.  Y.  S.  101  (1890),  where  it  was  held  that  though  the 
defendant  made  the  statement  in  answer  to  questions  put  by  one  interested, 
the  privilege  was  lost  by  the  presence  of  third  persons. 

"Unless  the  circumstances  clearly  require  the  statement  to  be  made  at  the 
particular  time  and  place,  it  is  a  matter  for  the  jury  to  say  whether  "the 
charge  was  made  before  more  persons  than  was  necessary" — Littledale,  J.  in 
Padmore  v.  Lawrence,  11  A.  &  E.  380  (1840)  ;  Davies  v.  Snead.  L.  R.  5  Q-  B. 
608  (1870)  ;  but  the  fact  that  the  defendant's  wife  was  present  was  held  in 
Jones  V.  Thomas.  34  W.  R.  104  (1885).  Excessive  publication  is  said  in  Den- 
ver  Warehouse  Co.  v.  Holloivay.  34  Colo.  432  (1905),  not  to  per  se  destroy 
the  privilege  but  to  be  evidence  of  malice  only. 


EDMONDSOX    V.    BIRCH    &    CO.  "  1 145 

EDMONDSON  v.  BIRCH  &  CO.,  Ltd. 

Court  of  Appeal,  1907.     L.  R.  1907,  1  King's  Bench,  371. 

Collins,  M.  R.  This  is  an  application  for  judgment  or  a  new 
trial  in  an  action  tried  before  Lawrence,  J.,  with  a  jury.  The  ac- 
tion was  for  libel,  and  the  defense  set  up  was,  in  substance,  priv- 
ilege. It  appears  to  me  that,  when  the  facts  are  sifted  and  ascer- 
tained, the  case  is  really  a  very  clear  one.  The  action  was  originally 
based  upon  the  words  of  the  telegram  mentioned  in  the  statement 
of  claim,  but  subsequently  the  statement  of  claim  was  amended  by 
adding  a  claim  in  respect  of  a  letter  written  by  the  defendants.  The 
letter,  however,  related  to  the  same  subject-matter  as  the  tele- 
gram, and  the  same  law  appears  to  me  to  be  applicable  to  both  docu- 
ments. The  circumstances  under  which  they  were  published  were 
as  follows :  The  defendants  were  a  company  in  London,  having 
business  relations  with  a  company  in  Japan,  which  acted  as  their 
agents  and  correspondents  in  that  country.  The  plaintiff  had  been 
temporarily  engaged  by  the  company  in  Japan  as  their  manager 
on  trial,  and  the  arrangement  between  the  plaintiff  and  that  com- 
pany is  stated  in  the  statement  of  claim  as  follows :  "On  March 
19,  1904,  the  plaintiff  was  by  verbal  agreement  engaged  by  Messrs. 
Birch,  Kirby  &  Co.,  Limited,  of  Kobe,  Japan,  on  trial  as  their 
mineral  manager  and  adviser  at  a  monthly  salary  of  150  yen  (£15 
English  money).  At  the  same  time  it  was  further  verbally  arranged 
that  Messrs.  Birch,  Kirby  &  Co.,  Limited,  should  immediately  com- 
municate with  the  defendant  company  in  London  to  ascertain  if  they 
approved  the  engagement,  and,  subject  to  such  approval,  they  agreed 
that  if,  after  three  months'  trial,  they  were  satisfied  with  the  con- 
duct and  ability  of  the  plaintiff,  they  would  continue  him  in  their 
permanent  employ  at  an  increased  salary  to  be  subsequently  agreed 
upon,  in  addition  to  which  the  plaintiff  was  to  have  a  share  of  profits 
arising  from  the  mineral  department  of  their  business."  In  conse- 
quence of  this  arrangement  the  letter  of  May  7,  which  was  one  of  the 
libels  complained  of,  was  written  by  the  defendant  company  to  the 
company  in  Japan.  The  letter,  a  copy  of  which  was  entered  in  the 
defendant  company's  letter-book,  was  in  these  terms.  (The  Mas- 
ter of  the  Rolls  then  read  the  letter.)  This  letter  was  followed  by 
a  telegram,  sent  to  Japan  in  the  terms  of  a  code,  which,  when  de- 
coded, reads  thus :  "Have  no  dealings  with  Edmondson ;  give  no- 
tice of  dismissal."  This  telegram,  with  the  translation  of  it,  was 
copied  into  the  defendant  company's  cable-book,  and  constituted  the 
second  libel  complained  of  by  the  plaintiff.  The  telegram  appears 
to  have  been  couched  in  the  terms  in  which  it  was,  because  they 
were  nearest  the  code  terms  available  for  the  purpose  of  conveying 
the  required  meaning.  The  learned  judge  held  that  the  occasion  on 
which  the  letter  and  telegram  were  published  to  the  company  in 
Japan  was  privileged,  and  that  there  was  no  evidence  of  any  actual 
malice  to  take  away  the  privilege  ;  but,  although  that  was  so,  he  was 
of  opinion,  upon  the  authority  of  Pullman  v.  Hill  &  Co.,  (1891)   i 


1 14-6  EDMONDSON    V.    BIRCH    &    CO. 

Q.  B,  524,  that  there  had  been  a  publication  of  the  statements  com- 
plained of  which  did  not  fall  within  the  privilege,  because  it  was 
made  to  persons  who  had  no  correlative  interest  in  the  matter,  by 
way  of  intermediaries,  namely,  the  clerks  in  the  defendants'  own 
office,  who  took  down  the  communications  to  be  sent  to  the  com- 
pany in  Japan  and  wrote  them  out,  and,  as  regards  the  telegram, 
the  telegraph  clerks.  He  therefore  left  the  case  to  the  jury,  with 
the  result  that  they  gave  the  plaintifif  a  verdict  for  £80  damages. 
The  defendants  now  apply  for  judgment  or  a  new  trial  on  the 
ground  that  the  occasion  was  privileged,  and  that  privilege  covered 
the  publication  to  which  I  have  just  alluded. 

It  seems  to  me  that  the  learned  judge  took  too  high  a  view  of 
the  effect  of  the  authority  upon  which  he  acted,  namely,  Pullman 
V.  Hill  &  Co.,  (1891)  I  O.  B.  524.  That  decision  related  to  a  com- 
munication made  by  the  defendants,  a  limited  company,  to  the  plain- 
tiffs, a  partnership  firm,  which  involved  a  serious  charge  against 
the  plaintiffs.  This  communication  was  made  by  a  letter  which  was 
dictated  by  the  defendants'  managing  director  to  a  clerk ;  and  the 
court  held  that,  under  the  circumstances,  it  was  not  necessary,  or 
in  the  ordinary  course  of  business,  for  the  director  to  have  availed 
himself  of  the  clerk  for  the  purpose  of  making  the  communication 
complained  of,  and  therefore  it  was  not  privileged.  The  question 
which  we  have  to  decide  is  whether  that  case,  as  subsequently  ex- 
plained and  qualified  in  Boxsius  v.  Goblet  Freres,  (1894)  i  Q.  B. 
842,  is  an  authority  which  concludes  the  present  case  in  favor  of  the 
plaintiff.  On  reference  to  the  judgment  of  Lord  Esher,  M.  R., 
in  the  latter  case  it  will  be  seen  how  he  qualified  and  distinguished 
the  decision  in  the  earlier  case,  to  which  he  was  himself  a  party. 
He  said:  "In  the  case  of  Pullman  v.  Hill  &  Co.,  (1891)  i  Q.  B.  524, 
this  court  held  that,  if  a  merchant  dictates  to  a  clerk  a  libellous  state- 
ment about  a  customer,  which  that  clerk  takes  down  and  gives  to 
another  clerk  in  the  office  to  copy,  that  is  a  publication  to  the  cl-erks, 
and  the  occasion  of  such  publication  is  not  privileged.  We  held  so 
on  the  ground  that  it  does  not  fall  within  the  ordinary  business  of  a 
merchant  to  write  such  defamatory  statements,  and  that,  if  he  does 
so,  it  is  not  reasonably  necessary,  as  he  is  doing  a  thing  not  in  the 
ordinary  course  of  his  business,  that  he  should  cause  the  statement 
to  be  copied  by  a  clerk  in  his  office.^     The  question  here  arises  in 


^  It  has  been  held,  following  Pullman  v.  Hill,  that  a  letter  written  by  a 
business  man  or  by  the  agent  of  a  company  in  charge  of  his  business  to  a 
plaintiff,  demanding  the  return  of  property  alleged  to  have  been  wrongfully 
withheld  by  him  and  characterizing  his  conduct  as  theft,  is  not  a  communi- 
cation rn  the  ordinary  course  of  business  and  that  the  dictation  of  such  letters 
to  a  stenographer  is  not  justifiable,  Moran  v.  O'Regan,  38  New  Brunswick  R. 
189  (1907)  ;  Piitcrbaugh  v.  Gold  Medal  Co.,  7  Ont.  L.  R.  582  (1904),  revising 
the  decision  of  the  Divisional  Court,  5  Ont.  L.  R.  680  (1903).  It  is  doubtful 
whether  any  proper  distinction  can  be  drawn  between  the  privilege  attaching 
to  communicate  matter  necessary  for  the  defense  of  one's  own  interest  or 
the  interests  of  one's  principals  and  the  privilege  to  communicate  similar 
matter  for  the  protection  of  others.  In  these  cases,  as  in  Pullman  v.  Hill,  the 
letters,  in  addition  to  the  statements  necessary  for  the  assertion  of  the  de- 


EDMONDSON    V.    BIRCH    &    CO.  1 147 

the  case  of  a  solicitor  instru,cted  by  a  client  to  obtain  payment  of  a 
bill,  and  to  press  the  person  who  is  charged  with  payment  of  the 
bill  to  the  extent  of  asserting  that  he  has  been  trying  to  evade  pay- 
ment by  at  least  a  shabby  trick,  and  possibly  by  a  criminal  action. 
The  first  point  taken  is  that  that  is  not  a  matter  within  the  ordinary 
business  of  a  solicitor.  This  is  an  argument  which  a  few  days  ago 
we  overruled  in  another  case,  where  it  was  said  that  the  business  of 
a  solicitor  was  to  conduct  actions ;  but  the  court  pointed  out  that  it 
was  also  part  of  the  ordinary  business  of  a  solicitor  to  endeavor  to 
secure  the  money  due  to  his  client  by  taking  steps  not  necessarily 
arising  in  an  action."  Lord  Esher  then  went  on  to  deal  with  the 
very  point  raised  in  this  case:  "Then  it  is  said  that  the  solicitors 
cannot  claim  privilege  as  between  themselves  and  the  typewriting 
clerk  who  took  down  the  letter  and  the  copying  clerk  who  copied  it 
into  the  letter-book.  Such  an  argument  requires  consideration ;  but 
it  seems  to  me  to  come  to  this.  It  is  the  duty  of  the  solicitor  to 
write  and  send  this  letter,  and  it  is  his  duty  to  do  that  in  the  ordi- 
nary and  reasonable  way.  The  duties  of  a  solicitor  are  not  to  one 
client  only,  but  to  all  his  chents,  and  he  has  to  take  measures  to 
perform  them  with  due  diligence,  and  according  to  the  necessary 
and  reasonable  method  of  conducting  business  in  a  solicitor's  office. 
If  a  solicitor  is  instructed  to  write  defamatory  matter  on  a  privi- 
leged occasion  on  behalf  of  a  client,  he  must  do  this  business  as  he 
does  other  business  in  the  office,  in  the  ordinary  way,  and  that  in- 
volves his  having  the  communication  taken  down  or  copied  by  a 
clerk  in  his  office,  and  copied  into  the  letter-book.  It  is  necessary 
to  keep  a  record  of  the  transaction,  one  reason  being  that  there  may 
be  a  check  on  the  bill  of  costs.  Such  a  case  seems  to  me  to  be  dis- 
tinguishable from  that  of  a  merchant  who  is  writing  a  libel  out  of 
the  course  of  his  ordinary  business,  who,  if  he  has  the  letter  copied 
by  a  clerk,  does  this  at  his  own  risk." 

The  result  of  the  two  cases  to  which  I  have  alluded,  taken  to- 
gether, appears  to  me  to  be  that,  where  there  is  a  duty,  whether  of 
perfect  or  imperfect  obligation,  as  between  two  persons,  which 
forms  the  ground  of  a  privileged  occasion,  the  person  exercising  the 
privilege  is  entitled  to  take  all  reasonable  means  of  so  doing,  and 
those  reasonable  means  may  include  the  introduction  of  third  per- 
sons, where  that  is  reasonable  and  in  the  ordinary  course  of  busi- 
ness ;  and  if  so,  it  will  not  destroy  the  privilege.  In  the  case  of  a 
solicitor,  his  duty  in  conducting  the  business  of  his  client  may  be 

fendant's  claim  against  the  plaintiff,  contained  aspersions  upon  the  plaintiff's 
motives  or  characterized  his  conduct  as  fraudulent  or  criminal. 

In  none  of  the  American  cases,  which  consider  the  effect  of  dictation  to 
a  stenographer  as  a  publication,  was  the  communication  privileged.  In  Gam- 
brill  v.  Schoolcy,  93  Md.  48  (1901),  and  Sun  Life  Assurance  Co.  v.  Bailey,  101 
Va.  443  (1903),  there  was  no  claim  or  proof  of  privilege,  while  in  Ferdon  v. 
Dickens,  1^1  Ala.  181  (1909),  the  court  held  that  the  communication  of  the 
letter  to  the  person  addressed  was  not  privileged.  And  see  Owen  v.  Ogilvie 
Co.',  32  N.  Y.  465  (1898),  where  it  was  held  that  the  manager  who  dictated 
the  letter  addressed  to  the  plaintiff  and  the  stenographer  who  took  it  down 
were  both  agents  of  the  employer  in  writing  it,  there  was  no  pubhcation  to 
any  third  party. 


1 148  EDMOXDSOX    %•.    ];1KC1I    .S:    CO. 

■  absolute,  whereas  in  this  case  it  may  be  said  that  the  duty  was  only 
one  of  imperfect  obligation,  but  the  nature  of  the  obligation  which 
gives  rise  to  the  privilege  cannotj  I  think,  alter  its  effect  in  this  re- 
spect.    If  the  duty  is  such  as  to  give  rise  to  a  privileged  occasion, 
then  the  fact  that  it  is  only  one  of  imperfect  obligation  cannot  effect 
the  mode  in  which  the  privilege  may  reasonably  be  exercised.     In 
the  case  of  Boxsiiis  v.  Goblet  Frcres,  (1894)   i  Q.  B.  842,  Davey, 
L.  J.  said  that  the  decision  at  which  the  court  was  arriving  was  jus- 
tified by  the  earlier  authorities.    I  think  the  only  one  of  those  earlier 
authorities  to  which  I  need  refer  is  the  case  of  Lawless  v.  Anglo- 
Egyptian  Cotton  Co.,  L.  R.  4  Q.  B.  262.    In  that  case  the  directors 
of  a  company  had  caused  a  report,  which  was  to  be  made  to  a  meet- 
ing of  shareholders,  and  which  contained  matter  defamatory  of  the 
plaintiff,  to  be  printed  for  circulation  among  all  the  shareholders, 
and  the  question  arose  wdiether  the  communication  of  that  matter 
to  the  printer  was  privileged ;  and  it  was  held  that  it  was,  because 
the  printing  of  the  report  was  the  ordinary  and  reasonable  mode  of 
doing  what  the  occasion  entitled  the  company  to  do,  namely,  com- 
municate the  report  to  the  shareholders.    That  seems  to  involve  the 
decision  of  the  very  point  raised  in  the  present  case,  namely,  that 
the  use  of  the  ordinary  and  reasonable  means  of  giving  effect  to  the 
privilege  does  not  destroy  it.    In  the  present  case  there  was,  in  addi- 
tion to  the  ordinary  business  relation  between  the  defendants  and 
the  company  in  Japan,  a  special  relation  created  by  arrangement 
made  by  the  plaintiff  himself  wath  the  latter  company  to  the  effect 
that  his  engagement  by  them  was  to  be  subject  to  the  approval  of  the 
defendant  company.     There  was,  therefore,  an  obligation  imposed 
on  the  defendants  in  the  matter  at  the  instance  of  the  plaintiff  him- 
self, which  involved  communications  on  the  subject  from  the  de- 
fendant company  to  the  company  in  Japan,  which  communications 
might  necessarily  have  to  be  made  by  telegraph,  inasmuch  as,  under 
the  circumstances,  it  was  obviously  essential  that  the  approval  or 
disapproval  of  the  engagement  by  the  defendants  should  be  com- 
municated as  promptly  as  possible.     The  only  witness  with  regard 
to  the  mode  in  which  the  communications  with  the   company  in 
Japan  were  carried  out  was  the  defendant  Horner  himself,     He 
gave  evidence  to  the  effect  that  the  communication  by  telegram  was 
carried  out  in  the  only  way  available,  and,  so  far  as  the  evidence  is 
concerned,  it  was  all  one  way,  namely,  to  the  effect  that,  as  a  matter 
of  business,  the  course  followed  in  making  the  communications  which 
had  been  made  was  the  reasonable  and  usual  course  to  adopt  under 
the  circumstances. 

With  regard  to  the  cross  application,  the  argument  for  the  plain- 
tiff seemed  to  be  really  founded  on  the  fallacy  that,  because  the  mat- 
ter contained  in  a  document  complained  of  is  defamatory,  that  is  in  it- 
self evidence  of  actual  malice.  It  is  of  course  assumed  for  the  purpose 
of  the  defence  of  privilege  that  the  document  is  to  some  extent  de- 
famatory. I  agree  that  the  language  used  may  in  some  cases  be  so 
defamatory,  and  so  far  in  excess  of  the  occasion,  as  to  be  evidence 
of  actual  malice,  and  to  shew  that  the  publication  of  the  defamatory 
matter  was  not  a  use,  but  an  abuse  of  the  privileged  occasion.    But 


EDMOXDSOX    r.    BIRCH    &    CO.  1 149 

che  mere  fact  that  language  used  is  somewhat  strong,  or  not  alto- 
gether intemperate,  would  not,  in  the  absence  of  any  indication  that 
it  was  not  used  bona  fide,  be  evidence  of  malice.-  On  looking  at 
the  whole  of  the  circumstances  and  the  correspondence  in  this  case, 
I  can  see  no  shadow  of  a  reason  for  the  suggestion  that  the  privilege 
was  in  the  present  case  abused.  For  these  reasons  I  think  that  the 
application  of  the  defendants  to  enter  judgment  must  be  allowed, 
and  the  cross  application  disallowed. 

Cozens-Hardy  L.  J.  I  am  of  the  same  opinion,  and  I  only  wish 
to  add  this.  I  think  that,  if  we  were  to  accede  to  the  argument  for 
the  plaintiff,  we  should  in  effect  be  destroying  the  defence  of  privi- 
lege in  cases  of  this  kind,  in  which  limited  companies  and  large  mer- 
cantile firms  are  concerned  ;  for  it  would  be  idle  in  such  cases  to  sup- 
pose that  such  documents  as  those  here  complained  of  could,  as  a 
matter  of  business,  be  written  by,  and  pass  through  the  hands  of, 
one  partner  or  person  only.  In  the  ordinary  course  of  business  such 
a  document  must  be  copied  and  finds  its  way  into  the  copy  letter- 
book  or  telegram-book  of  the  company  or  firm.  The  authorities  ap- 
pear to  me  to  show  that  the  privilege  is  not  lost  so  long  as  the  oc- 
casion is  used  in  a  reasonable  manner  and  in  the  ordinary  course  of 
business. 

Fletcher  Moulton  L.  J.  I  agree.  In  my  opinion  the  law  oii 
the  subject,  as  laid  down  in  the  cases,  amounts  to  this:  If  a_ busi- 
ness communication  is  privileged,  as  being  made  on  a  privileged 
occasion,  the  privilege  covers  all  incidents  of  the  transmission  and 
treatment  of  that  communication  which  are  in  accordance  with  the 
reasonable  and  usual  course  of  business.^ 

Judgments  for  defendants. 


-Accord:  Laughton  v.  Bishop  of  Sodor  and  Man,  L.  R.  4  P.  C.  495 
(1872).  "To  submit  the  language  of  privilege^  communications  to  a  strict 
scrutiny  and  to  hold  all  excess  beyond  the  actual  exigency  of  the  occasion  to 
be  evidence  of  malice,  would  in  effect  greatly  limit,  if  not  altogether  defeat, 
that  protection  which  the  law  throws  over  privileged  communications" — per 
Sir  Robert  Collier,  p.  508;  Spill  v.  Maule.  L.  R.  4  Exch.  232  (1869)  ;  Sutton 
V.  Plurnridge,  16  L.  T.  741  (1867),  plaintiff  stated  to  have  been  "as  drunk  as 
a  sow";  Gattis  v.  Kilgo,  128  N.  Car.  402  (1901)  ;  Strode  v.  Clement,  90  Va. 
553  (1894),  p.  559. 

But  the  language  of  the  communication  may  be  so  much  in  excess  of  the 
occasion,  so  disproportionate  to  the  facts  or  so  much  too  violent,  or  may  so 
needlessly  ascribe  improper  motives  that  it  may  be  evidence  of  malice,  Fryer 
V.  Kinnersley,  15  C.  B.  (N.  S.)  422  (1863);  Gilt^in  v.  Fozvler,  9  Exch.  615 
(1854)  ;  JVri'c/ht  v.  Woodgate,  2  Cromp.  M.  &  R.  573  (1835)  ;  Nichols  v.  Raton, 
110  Iowa  509  (1900)  ;  Gassett  v.  Gilbert,  6  Grav  94  (Mass.  1859)  ;  Aiwill  v. 
Mackintosh,  120  Mass.  177  (1876);  U'agner  v.  Scott,  164  Mo.  2S9  (1907); 
Jackson  v.  Pittsburgh  Times.  152  Pa.  St.  406  (1893),  exaggerated  and  sen- 
sational newspaper  article ;  Mulderig  v.  Wilkes-Barre  Times,  215  Pa.  470 
(1906)  ;  Farley  v.  Thalhimcr,  103  Va.  504  (1905).  So  it  is  held  in  Smith  v. 
Smith,  12)  Mich.  499  (1888),  that  the  inclusion  of  defamatory  statements  as 
to  facts  unnecessary  for  the  protection  of  the  maker's  interests  is  evidence  of 
malice,  a  letter  notifying  tradesmen  not  to  give  credit  to  a  wife  being  part 
from  her  husband,  unnecessarily  made  defamatory  statements  as  to  the 
causes  which  had  led  to  their  separation. 

^Accord:  Ashcrojt  v.  Hammond.  197  N.  Y.  488  (1910),  semble,  at  least 
when  the  plaintiff  has  shown  his  consent  to  a  telegraphic  correspondence  by 
himself  using  that  means  of  communication ;  compare  Williamson  v.  Freer, 


IT50  HEBDITCH    V.    MC  ILWAINE. 


HEBDITCH  r.  McILWAINE. 

Court  of  Appeal,  1894.     1894  Lazv  Reports,  2  Queen's  Bench  Div.  54. 

Lord  Esher,  M.  R,  In  this  case  the  plaintiff  has  brought  an 
action  against  the  defendants  for  writing  and  pubHshing  a  Hbel  upon 
him,  the  defamatory  matter  complained  of  being  that  he  had,  when 
a  candidate  for  the  office  of  guardian  of  the  poor,  been  guilty  of 
treating.  It  must  be  borne  in  mind  that  the  material  part  of  the 
cause  of  action  in  libel  is  not  the  writing,  but  the  publication  of  the 
libel.  It  was  proved  that  the  defendants  had  written  and  published 
to  the  board  of  guardians  matter  which  the  jury  found  to  be  libel- 
lous with  regard  to  the  plaintiff,  and  which  was  untrue.  The  de- 
fendants set  up  by  way  of  defence  that  the  occasion  was  privileged. 
It  is  for  the  defendant  to  prove  that  the  occasion  was  privileged. 
If  the  defendant  does  so,  the  burden  of  shewing  actual  malice  is  cast 
upon  the  plaintiff,  but,  unless  the  defendant  does  so,  the  plaintiff  is 
not  called  upon  to  prove  actual  malice.  The  question  whether  the 
occasion  is  privileged,  if  the  facts  are  not  in  dispute,  is  a  question 
of  law  only,  for  the  judge,  not  for  the  jury.  If  there  are  questions 
of  fact  in  dispute  upon  which  this  question  depends,  they  must  be 
left  to  the  jury,  but,  when  the  jury  have  found  the  facts,  it  is  for  the 
judge  to  say  whether  they  constitute  a  privileged  occasion. 

What  are  the  facts  upon  which  the  question,  whether  the  occa- 
sion was  privileged,  depends  in  the  present  case?  There  had  been 
an  election  to  the  office  of  guardian  of  the  poor,  and  the  plaintiff" 
had  been  elected.  The  defendants  were  ratepayers,  who  had  a  right 
to  vote  at  the  election.  After  the  election  they  wrote  and  sent  the 
letter  containing  the  matter  complained  of  to  the  board  of  guard- 
ians. It  seems  clear  that,  when  that  board  had  received  the  letter, 
they  could  do  nothing  in  the  matter.    They  could  not  set  aside  the 

L.  R.  9  C.  P.  393  (1874),  where  after  a  verdict  for  the  plaintiff,  based  on  the 
jury's  finding  that  it  was  not  reasonable  to  send  the  statements  in  question  by 
telegram,  the  court  refused  to  enter  a  verdict  for  the  defendant.  In  that  case 
the  defendant,  who  had  accused  the  plaintiff  of  theft,  telegraphed  from 
Leicester  to  the  latter's  father  in  London  "Your  child  will  be  given  in  charge 
of  the  police  unless  you  reply  and  come  to-dav.  she  has  taken  monej'  out  of 
the  till."  In  Tobin  v.  City  Bank,  1  S.  C.  R.  (N.  S.)  267  (N.  S.  W.  1878),  it 
was  held  excessive  publication  for  a  Sydney  Bank,  in  order  to  save  expense, 
to  send  a  defamatory  telegram  through  their  Melbourne  agents  instead  of 
directly  by  the  Government  Telegraph  Office  at  Sydney. 

The  sending  of  privileged  defamatory  matter  by  post  card  is  not  a  rea- 
sonable manner  of  communication,  Robinson  v.  Jones,  Ir.  4  C.  L.  391  (1879). 
"The  question,  then,  is  whether  a  person  having  occasion  to  communicate  to 
another  defamatory  matter  is  entitled,  for  the  mere  purpose  of  saving  one 
half-penny  postage,  to  make  that  communication,  not  by  a  closed  letter,  ca- 
pable of  being  used  by  the  person  through  whose  hands  it  is  transmitted  to 
the  post,  bv  the  official  post  office,  and  bv  the  servants  of  the  house  at  which 
it  is  delivered ;"— Pallas,  C.  B.,  p.  396;  Sadgrove  v.  Hole,  L.  R.  1901,  2  K.  B. 
1,  semble,  though,  the  statement  on  the  post  card  being  unintelligible  to  any 
one  but  the  addressee,  it  was  held  that  there  was  no  excessive  publication. 
Contra:  Steele  v.  Edwards,  15  Ohio  C.  C.  52  (1897),  holding  that  it  cannot 
be  assumed  that  third  persons,  especially  post-office  officials,  had  wrongfully 
read  post  cards  not  addressed  to  them. 


HEBDITCH    V.    MC  ILWAINE.  II5I 

election.  Such  being \he  facts  of  the  case,  what  was  the  judge  called 
upon  to  consider  in  dealing  with  the  question  whether  the  occasion 
was  privileged?  He  had  first  to  consider  whether  the  defendants, 
who  published  the  defamatory  matter,  had  any  interest  or  duty  in 
connection  with  the  subject  which  they  thus  brought  before  the 
board  of  guardians.  I  am  not  prepared  to  say  that  they  had  not 
an  interest  or  duty.  On  the  contrary,  I  am  inclined  to  think  that 
they  had  an  interest  in  the  matter.  They  were  electors,  and  had  an 
interest  in  having  the  office  filled  by  a  person  properly  elected.  Then 
the  position  of  the  board  of  guardians,  to  whom  the  defamatory  mat- 
ter was  published,  had  to  be  considered.  They  had  no  interest  in 
the  matter,  as  it  seems  to  me,  and,  as  I  have  already  said,  they  had 
no  duty  or  power  to  take  any  action  upon  the  communication  made 
to  them.  Under  these  circumstances  I  think  it  is  clear  that  the 
occasion  was  not  privileged. 

It  was  argued  that,  although  the  board  of  guardians  had  no 
power  or  duty  or  interest  in  the  matter,  nevertheless  the  occasion 
was  privileged,  because  the  defendants  honestly  and  reasonably  be- 
lieved that  the  board  had  such  a  duty  or  power  or  interest,  and  were 
asking  them  for  redress  in  the  matter,  which  they  believed  they 
could  give.  Assuming  that  the  defendants  had  such  a  belief,  though 
I  confess  I  cannot  see  how  there  could  be  any  reason  in  such  a  be- 
lief, the  argument  in  substance  seems  to  come  to  this :  that  the  be- 
lief of  the  defendants  that  the  occasion  was  privileged  makes  it 
privileged.  I  cannot  accept  the  proposition  so  put  forward.  I  can- 
not see  how  the  belief  of  the  defendants,  who  have  made  a  mistake, 
and  have  published  a  libel  to  persons  who  have  no  interest  or  duty 
or  power  in  the  matter,  can  affect  the  question.  The  belief  of  the 
defendants  might  have  a  bearing  on  the  question  of  malice ;  if  it  be 
assumed  that  the  occasion  was  privileged,  the  belief  of  the  defend- 
ants might  be  strong  to  shew  that  the  communication  was  privileged, 
as  being  made  without  malice,  but  I  do  not  think  it  has  anything  to 
do  with  the  question  whether  the  occasion  was  privileged.  Reli- 
ance was  placed  rather  on  authority  than  on  principle  in  support  of 
the  contention  for  the  defendants.  If  that  contention  had  been  de- 
cided to  be  correct  by  the  Court  of  Appeal  or  any  Court  whose  au- 
thority was  binding  on  us,  there  would,  of  course,  be  no  more  to  be 
said.  But  I  do  not  think  that  the  point  has  been  decided  in  favor 
of  the  defendants  by  any  such  Court. 

The  only  case  which  really  seems  to  me  to  be  a  strong  authority 
in  favor  of  the  defendant's  contention  is  the  case  of  Tompson  v. 
Dashwood,  ii  Q.  B.  D.  43.  There  the  judges  distinguish  between 
the  writing  and  the  publication  of  the  libel,  and  speak  of  the  writing 
as  having  been  on  a  privileged  occasion.  T  cannot  follow  their  rea- 
soning. The  cause  of  action  in  libel  is,  as  I  said  at  the  beginning  of 
my  judgment,  not  the  writing  but  the  publication  of  the  libel ;  and 
the  question  is  not  whether  the  writing,  but  whether  the  publication 
is  on  a  privileged  occasion.  The  only  way  to  deal  with  that  case 
in  my  opinion  is  to  say  that  we  do  not  agree  with  it,  and  that  it  was 
wrongly  decided.  Therefore,  in  the  present  case,  when  it  was 
proved  to  the  judge  that  the  libel  was  published  by  the  defendants 


1 152  COLEMAN    V.    MAC  LENNAN. 

to  the  board  of  guardians,  who  had  no  interest  in  the  matter  nor 
any  duty  or  power  to  deal  with  it,  then,  without  more,  he  ought  to 
have  held  that  the  occasion  was  not  privileged,  and  there  was  no 
further  question  to  try  as  to  privilege. 

Davey,  L.  J.  I  am  of  the  same  opinion.  I  do  not  think  it  nec- 
essary to  state  the  reasons  for  my  opinion  at  length.  I  desire,  how- 
ever, to  say  that  I  agree  with  the  Master  of  the  Rolls  in  thinking 
that  the  judgment  in  Tompson  v.  Dashwood,  ii  Q.  B.  D.  43,  can- 
not be  supported.  It  is  not  the  writing  of  a  libel  which  is  actionable, 
but  the  publication  of  it.  The  question,  whether  the  occasion  on 
which  such  publication  takes  place  is  privileged,  depends,  in  my 
opinion,  on  the  question  whether  there  is  in  fact  an  interest  or  duty 
in  the  person  to  whom  the  libel  is  published :  I  cannot  think  that 
the  mistake  of  the  defendant  in  addressing  the  communication  to 
the  wrong  person,  or  his  belief,  however  honest,  that  the  person  to 
whom  it  is  published  has  a  duty  or  interest  in  the  matter,  can  make 
'd,ny  difference  with  regard  to  the  question  whether  the  occasion  is 
privileged. 

COLEMAN  V.  ^IacLENNAN. 

Supreme  Court  of  Kansas,  1908.     78  Kans.  711. 

BuRCH,  J.  The  plaintiff'  argues  that  the  defense  of  privilege 
was  destroyed  by  the  fact  that  the  copies  of  the  defendant's  news- 
paper circulated  in  other  states,  complains  of  the  instructions  given 
upon  the  subject,  and  insists  that  the  instruction  offered  by  him 
should  have  been  given.  The  instruction  given  was  correct  and 
follows  the  rule  announced  by  this  court  in  Redgate  v.  Roush,  61 
Kans.  480.  There  a  matter  of  interest  to  communicants  of  a  church 
was  published  in  the  church  papers  in  Indiana,  Ohio,  Texas  and 
Nebraska.  It  was  inevitable  that  they  should  be  read  by  people  of 
other  denominations.  The  syllabus  reads:  "Where  the  publication 
appears  to  have  been  made  in  good  faith  and  for  the  members  of  the 
denomination  alone,  the  fact  that  it  incidentally  may  have  been 
brought  to  the  attention  of  others  than  members  of  the  church  will 
not  take  away  its  privileged  character.'"^  This  accords  with  the  gen- 
eral rule  stated  in  25  Cyc.  Law  &  Proc.  p.  387.  See  also  Hatch  v. 
Lane,  105  Mass.  394;  Menters  v.  Bee  Publishing  Co.,  5  Nebr. 
(Unof.)  592.  In  the  cases  of  State  v.  Haskins,  109  la.  656,  Buck- 
staff  v.  Hicks,  94  Wis.  34,  and  Sheftall  v.  Central  R.  Co.,  123  Ga. 
589,  language  is  used  from  which  it  might  be  inferred  that  the  privi- 
lege will  be  destroyed  if  the  communication  should  reach  the  eyes 
of  others  than  persons  interested.-    This  would  be  the  end  of  privi- 

\Accord:   Shurtlcff  v.  Stevens,  51  Vt.  501  (1879).  similar  facts. 

'See  accord:  Jones,  Varnuni  &  Co.  v.  Townscnd.  21  Fla.  431  (1885). 
semble,  and  see  Diincombe  v.  Daniel,  8  C.  &  P.  222  (1837),  1  W.  W.  &  H.  101. 
the  procurement  of  the  publication  in  the  public  newspapers  of  an  attack  on 
a  candidate  for  Parliament  held  not  privileged,  though  it  is  doubtful 
whether  the  decision  went  on  the  ground  of  excessive  publication  to  those  not 
concerned  as  electors  or  on  the  ground  that  the  statements  attacked  the  can- 
didate's private  rather  than  his  public  character ;  and  Pierce  v.  Ellis,  6  Ir.  C. 


MALICE.  II53 

lege  for  all  newspapers  having  circulation  and  influence.  Gen- 
erally the  publication  must  be  no  wider  than  will  meet  the  require- 
ments of  the  moral  or  social  duty  to  publish.  If  it  be  designedly  or 
unnecessarily  or  negligently  excessive,  privilege  is  lost.  But,  if  a 
state  newspaper  published  primarily  for  a  state  constituency  have  a 
small  circulation  elsewhere,  it  is  not  deprived  of  its  privilege  in  the 
discussion  of  matters  of  state-wide  concern  because  of  that  fact.^ 


(b)   "Malice.' 


Parson  Prick's  Case,  cited  in  Cro.  Jac.  91. 
Coke  cited  a  case,  where  Parson  Prick  in  a  sermon  recited  a  story  out  of 
Fox's  Martyrology,  that  one  Greenwood,  being  a  perjured  person,  and  a  great 


L.  55  (1856),  where  the  defendant  handed,  to  newspaper  reporters  a  copy  of 
his  speech  made  at  a  public  meeting  called  to  petition  Parliament,  and  com- 
pare Hunt  v.  Bennett,  19  N.  Y.  173  (1859),  where  the  defendant  published  in 
a  newspaper  an  open  letter  attacking  the  character  of  an  applicant  for  ap- 
pointment by  a  municipal  council  to  an  office  in  its  gift. 

^  See  Express  Printing  Co.  v.  Copeland,  64  Tex.  354  (1885).     In  Marks 
V.  Baker,  28  Minn.  162  (1881),  it  was  held  that  citizens  had  the  right  to  pub- 
lish in  a  local  paper  an  article  containing  statements  defamatory  of  a  candi- 
date for  a  local  election  office.     The  insertion  in  a  newspaper  of  an  adver- 
tisement of  purely  private  concern  was  held  by  Ellenborough,  C.  J.  in  Brown 
V.  Croome,  2  Starkie  297  (1817),  to  be  justifiable  only  if  the  defendant  showed 
that   "such   publication   was   the   only   effectual   means   of   accomplishing   his 
object"  of  giving  information  to  the  persons  to  whom  it  was  proper  for  him 
to  convey  it,  and  it  was  there  held  that  it  was  not  necessary  for  the  defend- 
ant to  do  so  in  order  to  convene  a  meeting  of  the  plaintiff's  creditors,  of  whom 
he  was  one,  and  it  was  doubted  in  Lay  v.  Lawson,  4  A.  &  E.  795    (1836), 
whether  newspaper  advertisement  was  ever  justified  to  protect  or  further  a 
purely  private  interest.     The  later  American  cases,  however,  hold  that  it  is 
for  the  jury  to  say  whether  the  advertisement  is   a  reasonable  or  necessary 
method  of  giving  notice  to  those  interested  or  whom  the  defendant  must  no- 
tify to  protect  his  interests,  Hatch  v.  Lane,  105  Mass.  394  (1870),  defendant 
inserted   an   advertisement   warning  his   customers   against   paying  bills   to   a 
discharged  employee;  Holliday  v.  Ontario  Farmers  Mutual  Insurance  Co.,  Zi 
(J.  C.  Q.  B.  558  (1873),  scmhle;  see  also  Redgate  v.  Roush  and  Shurtlcff  v. 
Stevens,  51  Vt.  501,  and  the  publication  of  such  advertisements  by  a  news- 
paper  is   also  privileged,   Commonwealth   v.   Feathcrston,  9   Phila.   594    (Pa. 
1872),  advertisement  warning  the  public  against  negotiating  notes  alleged  to 
have  been  fraudulently  procured  by  the  plaintiff.   In  Smith  v.  Streatjicld,  L.  R. 
1913,  3  K.  B.  764,  it  !s  held  that  the  malice  of  the  author  of  a  privileged  com- 
munication destroys  the  privilege  of  a  newspaper  publishing  it  in  good  faith, 
see  Thomas  v.  Bradbury,  Agneiv  &  Co.,  L.  K.  1906,  2  K.  B.  627. 

In  S he f tall  V.  Central  R.  Co.,  123  Ga.  589  (1905),  it  was  held  that  the 
defendant,  though  privileged  to  communicate  to  all  employees,  concerned  with 
the  validity  of  tickets,  its  suspicion  that  a  discharged  conductor  had  appro- 
priated tickets  which  he  might  put  in  circulation,  could  not  do  so  by  posting 
placards  which  it  knew  or  should  have  kno^vn  would  be  also  read  by  other 
employees,  and  see  P.  W.  &  B.  R.  Co.  v.  Quigley,  21  How.  202  (U.  S.  1858), 
and  as  to  the  right  of  commercial  agencies  to  circulate  information  as  to  the 
financial  standing  of  business  men  and  firms  among  all  their  subscribers, 
many  of  whom  are  not  concerned  in  the  particular  information  furnished, 
see  Taylor  v.  Church,  8  N.  Y.  452  (1853)  ;  Sunderlin  v.  Bradstrect,  46  N.  Y 
188  (1871)  ;  Commonwealth  v.  Stacex,  8  Phila.  617  (Pa.  1871);  King  v  Pat- 
terson, 49  N.  J.  L.  417  (1887)  ;  Bradstrect  Co.  v.  Gill,  72  Tex.  115  (1888)  • 
Pollasky  V.  Minchcner,  81  Mich.  280  (1890)  ;  Mitchell  v.  Bradstreet  Co  116 
Mo.  226  (1893). 


1 154  CASES   ON    TORTS. 

persecutor  had  great  plagues  inflicted  upon  him,  and  was  killed  by  the  hand 
of  God;  whereas  in  truth  he  never  was  so  plagued,  and  was  himself  present 
at  that  sermon;  and  he  thereupon  brought  his  action  upon  the  case,  for  call- 
ing him  a  perjured  person  :  and  the  defendant  pleaded  not  guilty.  And  this 
matter  being  disclosed  upon  evidence,  Wray,  Chief  Justice,  delivered  the  law 
to  the  jury,  that  it  being  delivered  but  as  a  story,  and  not  with  any  malice  or 
intention  to  slander  any,  he  was  not  guilty  of  the  words  maliciously;  and  so 
was  found  not  guilty.  14  Hen.  6  pi.  14.  20  Hen.  6  pi.  34. — And  Popham 
affirmed  it  to  be  good  law,  when  he  delivers  matter  after  his  occasion  as  mat- 
ter of  story,  and  not  with  an  intent  to  slander  any. — Wherefore,  for  these 
reasons,  it  was  adjudged  for  the  defendant.* 

Bayley,  J,  in  Bromage  v.  Prosser  (1825),  4  B.  &  C.  247:  That  malice,  in 
some  sense,  is  the  gist  of  the  action,  and  that  therefore  the  manner  and  occa- 
sion of  speaking  the  words  is  admissible  in  evidence  to  show  they  were  not 
spoken  with  malice,  is  said  to  have  been  agreed  (either  by  all  the  judges,  or 
at  least  by  the  four  who  thought  the  truth  might  be  given  in  evidence  on  the 
general).  In  Stnith  v.  Richardson,  Willes,  24;  and  it  has  been  laid  down  in  1 
Com.  Dig.  action  upon  the  case  for  defamation,  G  5,  that  the  declaration  must 
show  a  malicious  intent  in  the  defendant,  and  there  are  some  other  very  useful 
elementary  books  in  which  it  is  said  that  malice  is  the  gist  of  the  action,  but  in 
what  sense  the  words  malice  or  malicious  intent  are  here  to  be  understood, 
whether  in  the  popular  sense,  or  in  the  sense  the  law  puts  upon  those  ex- 
pressions, none  of  these  authorities  state.  Malice  in  common  acceptation 
means  ill-will  against  a  person,  but  in  its  legal  sense  it  means  a  wrongful  act, 
done  intentionally,  without  just  cause  or  excuse.  If  I  give  a  perfect  stranger 
a  blow  likely  to  produce  death,  I  do  it  of  malice,  because  I  do  it  intentionally 
and  without  just  cause  or  excuse.  If  I  maim  cattle,  without  knowing  whose 
they  are;  if  I  poison  a  fishery,  without  knowing  the  owner,  I  do  it  of  malice, 
because  it  is  a  wrongful  act,  and  done  intentionally.  If  I  am  arraigned  of 
felony,  and  wilfully  stand  mute,  I  am  said  to  do  it  of  malice,  because  it  is 
intentional  and  without  just  cause  or  excuse.  And  if  I  traduce  a  man, 
whether  I  know  him  or  not,  and  whether  I  intend  to  do  him  an  injury  or  not, 
I  apprehend  the  law  considers  it  as  done  of  malice,  because  it  is  wrongful  and 
intentional.  It  equally  works  an  injury,  whether  I  meant  to  produce  an  in- 
jury or  not,  and  if  I  had  no  legal  excuse  for  the  slander,  why  is  he  not  to 
have  a  remedy  against  me  for  the  injury  it  produces?  But  in  actions  for 
such  slander  as  is  prima  facie  excusable  on  account  of  the  cause  of  speaking 
or  writing  it,  as  in  the  case  of  servant's  characters,  confidential  advice,  or 
communications  to  persons  who  ask  it,  or  have  a  right  to  expect  it,  malice  in 
fact  must  be  proved  by  the  plaintiff,  and  in  Edmondson  v.  Stevens,  Bull.  N.  P. 
8,  Lord  Mansfield  takes  the  distinction  between  these  and  ordinary  cases  of 
slander.  Buller,  J.,  repeats  in  Pasley  v.  Freeman,  3  T.  R.  61,  that  for  words 
spoken  confidentially  upon  advice  asked,  no  action  lies,  unless  express  malice 
can  be  proved.  So  in  Har grave  v.  Le  Breton,  3  Burr.  2425,  Lord  Mansfield 
states  that  no  action  can  be  maintained  against  a  master  for  the  character  he 
gives  a  servant,  unless  there  are  extraordinary  circumstances  of  express 
malice.     But  in  an  ordinary  action  for  libel  or  for  words,  though  evidence 


*  So  in  Crawford  v.  Middlcton,  1  Lev.  82  (1674),  where  the  plaintifif  was 
nonsuited  on  the  ground  that  the  defendant,  who  had  said  that  the  plaintiff 
had  been  hanged  for  stealing  a  horse,  had,  as  it  appeared  on  the  evidence, 
spoken  the  words  in  genuine  grief  and  sorrow  at  the  news. 


MALICE.  li:; 


d:) 


of  malice  may  be  given  to  increase  the  damages,  it  never  is  considered  as 
essential,  nor  is  there  any  instance  of  a  verdict  for  a  defendant  on  the  ground 
of  want  of  malice. 


BuRCH,  J.  in  Coleman  v.  MacLennan,  78  Ivans.  711.^ 

With  all  due  deference  to  Upton  v.  Hume,'  the  remarks  quoted  read  as 
if  they  had  been  written  in  the  midst  of  the  fog  of  fictions,  inferences  and 
presumptions  which  enshroud  the  law  of  libel.  Facts  and  the  truth  never 
have  been  much  in  favor  in  that  branch  of  the  law.  Its  early  use  as  a  weapon 
and  shield  of  caste  and  arbitrary  power  would  have  been  impaired.  Suppose 
a  serious  charge  to  be  made :  By  a  fiction  it  is  presumed  to  be  false.  By  a 
fiction  malice  is  inferred  from  the  fiction  of  falsity.  By  a  fiction  damages  are 
assumed  as  a  consequence  of  the  fictions  of  malice  and  falsity.  Publication 
only  is  not  presumed,  and  until  recent  times  the  offer  to  show  the  truth  of  the 
charge  as  having  some  bearing  upon  liability  was  a  sacrilegious  insult  to  this 
beautiful  and  symmetrical  fabric  of  fiction.  Then  a  defendant  was  made  to 
sufYer  additional  smart  for  venturing  to  obtrude  the  truth  as  a  defence  if, 
although  his  proof  were  abundant,  he  barely  failed,  in  the  opinion  of  the 
jury,  to  make  out  a  preponderance.  It  is.  however,  in  the  field  of  malice, 
where  the  rule  stated  in  the  quotation  lies,  that  truth  and  fact  are  most  super- 
fluous. In  the  first  place  it  is  said  that  malice  is  the  gist  of  the  action  for 
libel.  This  is  pure  fiction.  It  is  not  true.  The  plaintiff  makes  a  complete 
case  when  he  shows  the  publication  of  the  matter  from  which  damage  may 
be  inferred.  The  actual  fact  may  be  that  no  malice  exists  or  could  be 
proved.  Frequently  libels  are  published  with  the  best  of  motives,  or  perhaps 
mistakenly  or  inadvertently  but  with  an  utter  absence  of  malice.  The  plain- 
tiff recovers  just  the  same.  Therefore  "the  gist  of  the  action"  must  be  taken 
out  of  the  case.  This  is  done  by  another  fiction.  It  is  said  that  of  course 
malice  does  not  mean  the  one  thing  known  to  fact  or  experience  to  which  the 
term  may  apply,  but  it  is  just  a  legal  expression  to  denote  want  of  legal  ex- 
cuse. In  this  state  a  statutory  definition  of  libel  making  malice  an  essential 
ingredient  as  at  the  common  law  compels  this  court  to  say  that  the  intentional 
publication  of  libelous  matter  implies  malice,  whatever  the  motive  may  be. 
(The  State  v.  Clyne,  53  Kans.  8,  35  Pac.  789.)  So,  a  fiction  was  invented  to 
meet  an  unnecessary  fiction  'which  became  troublesome,  and  the  courts  go  on 
gravely  ascending  the  hill  for  the  purpose  of  descending,  meanwhile  fillin- 
the  books  with  scholastic  disquisitions,  verbal  subtleties  and  refined  distinc- 
tions about  malice  in  law,  malice  in  fact,  express  malice,  implied  malice,  etc., 
etc. 

Now,  what  is  the  fact?  Instead  of  malice  being  the  gist  of  the  action  it 
may  come  into  a  libel  case  and  be  of  importance  in  two  events  only :  to  affect 
damages,  and  to  overcome  a  defense  of  privilege.  If  the  occasion  be  abso- 
lutely privileged,  there  can  be  no  recovery.  If  it  be  conditionally  privileged, 
the  plaintiff   must  prove   malice — actual   evilmindedness— or   fail.     When   it 


^  For  the  facts  of  the  case  and  so  much  of  the  opinion  as  deals  with  the 
existence  of  a  privilege  to  communicate  to  electors  information  as  to  candi- 
dates for  elective  office,  see  ante,  p.  1070. 

^  In  24  Ore.  420,  the  remarks  quoted  are  "The  only  safe  evidence  of  a 
man's  intentions  are  his  acts,  and  if  he  accuses  another  of  a  crime  he  must 
conclusively  be  presumed  to  have  intended  to  injure  him." 


I  156  LANCASTER   V.    IIAMP.URGF.R. 

comes  to  this  proof  there  is  no  presumption,  absolute  or  otherwise,  attaching 
to  a  charge  of  crime.  The  proof  is  made  from  an  interpretation  of  the 
writing,  its  mahgnity  or  intemperance,  bj-  showing  recklessness  in  making 
the  charge,  pernicious  activitj-  in  circulating  or  repeating  it,  its  falsity,  the 
situation  and  relations  of  the  parties,  the  facts  and  circumstances  surround- 
ing the  publication,  and  by  other  evidence  appropriate  to  a  charge  of  bad 
motives,  as  in  other  cases." 


LANCASTER  v.  HA:^ [BURGER. 

Supreme  Court  of  Ohio.  1904.     70  Ohln  St.  156. 

Error  to  the  Superior  Court  of  Cincinnati. 

Lancaster  brought  suit  against  Hamburger,  the  substance  of 
the  allegations  of  his  petition  being,  that  he  had,  for  a  long  time, 
been  in  the  employ  of  the  Cincinnati  Street  Railway  Co.  in  the 
capacity  of  a  conductor ;  that  the  defendant,  who  had  conceived  a 
violent  dislike  to  him,  and  who  had  repeatedly  threatened  to  pro- 
cure his  discharge  from  said  employment,  did.  without  exctise,  cause, 
or  justification,  and  actuated  solely  by  a  malicious  desire  to  injure 
l>laintiff.  falsely  and  maliciously  say  to  the  superintendent  of  said 
company  that  plaintiff,  while  on  duty  as  conductor,  had  been  guilty 
of  misconduct  and  of  violation  of  the  rules  of  the  company,  in 
consequence  of  which  charge  plaintiff  was,  on  that  day,  discharged 
from  said  employment,  to  his  damage  in  the  sum  of  ten  thousand 
dollars.  The  defendant,  answering,  denied  the  allegations  of  malice, 
and  averred  that  while  he  and  others  were  traveling  as  passengers 
on  the  car  of  said  company  which  was  in  charge  of  plaintiff  as  con- 
ductor, the  plaintiff'  was  guilty  of  rude  and  ungentlemanly  conduct 
toward  them,  which  defendant  reported  to  the  superintendent  of 
the  coinpany,  and  that  the  suoerintendent.  after  investigating  the 
stibject,  discharged  the  plaintiff  from  the  company's  service. 

The  plaintiff  excepted  to  the  charge  of  the  court,  the  material 
portion  of  which  is  the  following  instruction  given  at  the  request 
of  the  defendant:  "It  was  the  duty  of  the  plaintiff  not  to  conform 
to  any  fanciful  degree  of  conduct,  nor  to  observe  the  degree  of  con- 
duct which,  perhaps,  we  would  like  to  observe  at  all  times  as  ideal, 
but  he  was  obliged  to  observe  such  degree  of  deportment,  deconmi, 
Tioliteness  and  courtesy  as  is  common  among  ordinary  men  in  their 
dealings  with  one  another;  and  if  he  failed  to  observe  such  a  stand- 
ard, then  he  wotild  be  guilty  of  rtideness  and  the  defendant  in  the 
case  would  have  a  right  to  make  complaint. 

The  jury  returned  a  verdict  for  the  defendant  and.  the  plain- 
tiff's motion  for  a  new  trial  having  been  overruled,  judgment  fol- 
lowed the  verdict.  The  judgment  was  affirmed  by  the  superior  court 
at  general  term. 

Shauck,  J.  (After  commenting  tipon  the  cases  of  Allen  v. 
Flood,  1898,  A.  C,  T.  and  Oninn  v.  Leathern,  1901,  A.  C,  495.) 
Xeither  of  these  cases,  nor  any  of  the  others  cited  by  counsel  foi  the 
plaintiff,  can  have  the  effect  to  disturb  the  rule  generally  recognized 
and  well  established  in  this  state,  that  it  is  immaterial  what  motive 


LANCASTER    V.    HAMBURGER.  1 157 

one  is  prompted  in  the  exercise  of  a  clear  legal  right  or  the  per- 
formance of  a  duty.  Fracicr  v.  Brozoi,  12  Ohio  St.  294;  Letts  v. 
Kcsslcr,  54  Ohio  St.  yT, ;  Kclley  v.  The  Ohio  Oil  Co.,  57  Ohio  St. 
2,2"/.^  Certainly  the  motive  which  prompts  one  to  the  commission  of 
a  wrongful  act  may  be  very  material,  for  it  may  determine  v.-hether 
the  injured  party  may  recover  exemplary,  or  only  compensatory 
damages.  The  record  does  not  admit  a  doubt  that  the  defendant 
exercised  a  legal  right,  if,  indeed,  he  did  not  perform  a  duty  in 
making  complaint  to  the  superintendent  of  the  company  of  the 
plaintiff's  misconduct.  The  evidence  tended  to  show,  and  the  in- 
struction required  the  jury  to  find,  that  the  plaintiff  had  been  guilty 
of  the  misconduct  of  which  complaint  A\as  made.  The  defendant 
and  his  wife  were  patrons  of  the  street  railway  company,  a  common 
carrier  of  passengers,  and  entitled,  in  common  with  the  public  gen- 
erally, to  civil  treatment  while  aboard  its  cars,  and  to  the  benefit  of 
the  rules  designed  for  the  safety  and  comfort  of  passengers.  The 
plaintiff*  was  the  representative  of  the  company  who  came  in  con- 
tact with  its  patrons,  and  tlirough  whoikit  discharged  some  of  the 
most  important  duties  it  owed  the  public.  Since  it  would  not  be 
])racticable  for  the  company  to  institute  and  maintain  such  super- 
\ision  of  the  conduct  of  all  its  conductors  as  would  secure  the  full 
performance  of  all  their  duties  toward  passengers,  the  patrons  of  the 
road  should  be  encouraged  to  report  their  misconduct  fairly  and 
justly;  nor  should  a  patron  of  the  company  be  required,  by  the 
consciousness  of  ill  will  toward  the  offender,  to  abstain  from  mak- 
ing a  truthful  report  of  such  misconduct.  Seeing  that  such  miscon- 
duct naturally  arouses  resentment  in  all  who  observe  it,  it  would 
result,  from  the  contrary  rule,  that  a  conductor's  immunity  from 
complaint  would  be  in  proportion  to  the  offensiveness  of  his  mis- 
conduct. Judgment  aflfirmed." 


'  See  Fowler  v.  Jenkins.  24  Pa.  308  (1855),  where  the  defendant  removed 
a  fence  wrongfully  erected  by  himself  and  the  plaintiff  on  a  public  highway. 
So  the  motive  which  inspires  a  man  to  take  such  action  as  the  law  permits 
to  protect  his  person  or  property  from  wrongful  interference  or  intrusion, 
is  immaterial.  Brothers  v.  Morris.  49  Vt.  460  (1877)  :  Kiff  v.  Voumans  86  n' 
Y.  324  (1881),  semble:  Oakes  v.  Wood,  2  M.  &  W.  791  ( 1837),  the  defendants, 
occupiers  of  land,  expelled  a  trespasser.  "If  the  defendant  had  a  justifiable 
cause  for  turning  the  party  out.  the  motive  was  wholly  immaterial;  even 
though  he  did  it  in  pursuance  of  an  old  grudge,  it  makes  no  difference,  as 
long  as  he  did  no  more  than  was  necessary  to  turn  her  out." — Parke'  B 
Humphrey  v.  Doii(jlass.  11  Vt.  22  (1839),  defendant  turned  off  his  farm  a 
horse  wrongfully  intruding  thereon;  Smith  v.  Johnson,  76  Pa.  St.  191  (1874), 
landowner  removed  an  encroaching  fence,  compare  Jenkins  v.  Fowler  24  Pa' 
St.  308  (1855)  ;  Cliufon  v.  Myers.  46  X.  Y.  511  (1871),  riparian  owner' opened 
gates  in  a  dam,  which  obstructed  the  natural  flow  of  the  stream.  So  a  land- 
owner may,  without  regard  to  his  motive,  do  any  act  necessary  to  prevent 
another  acquiring  an  easement  over  it,  Mahan  v.  Brown,  13  Wend  261  (N  Y 
1835),  semble:  Phelps  v.  Nowlen,  72  X.  Y.  39  (1878). 

^In  an  action  of  Slander  or  Libel  if  the  truth  of  the  defamatory  state- 
ments be  specially  pleaded  and  "the  jury  are  satisfied  that  the  words  are  true 
in  substance  and  fact,  they  must  find  for  the  defendant,  though  they  feel 
sure  that  he  spoke  the  words  spitefully  and  maliciously"— Odgers,  Libel  and 
Slander.  4th  ed.,  1913.  As  to  the  law  of  Quebec,  see  Trudel  v.  Viau  Mont- 
real L.  R..  5  Q.  B.  502  (1889)  ;  Jeannotte  v.  Gauthier,  Montreal  L  R  1097 
6  Q.  B.  520.  •      •     -^   /, 


1 158  TAIIR   V.    HAYES. 

BRADLEY  v.  HEATH. 
Supreme  Judicial  Court  of  Massachusetts,  1831.     12  Pick.  163. 

Shaw,  C.  J.  Where  words  imputing  misconduct  to  another, 
are  spoken  by  one  having  a  duty  to  perform,  and  the  words  are 
spoken  in  good  faith,  and  in  the  behef  that  it  comes  within  the  dis- 
charge of  that  duty,  or  where  they  are  spoken  in  good  faith,  to  those 
who  have  an  interest  in  the  communication  and  a  right  to  know  and 
act  upon  the  facts  stated,  no  presumption  of  mahce  arises  from  the 
speaking  of  the  words,  and  therefore  no  action  can  be  maintained 
in  such  cases,  without  proof  of  express  mahce.  If  the  occasion  is 
used  merely  as  a  means  of  enabhng  the  party  uttering  the  slander  to 
indulge  his  malice,  and  not  in  good  faith  to  perform  a  duty  or  make 
a  communication  useful  and  beneficial  to  others,  the  occasion  will 
furnish  no  excuse.  Bromage  v.  Prosser,  4  Barn.  &  Cress w.  247 ; 
Starkie  on  Slander,  200. 

We  think  the  case  must  be  governed  by  this  rule.  The  charge 
in  the  first  two  counts  was,  that  the  plaintiff  had  put  two  votes  into 
the  ballot  box.  It  appears  that  the  defendant  was  one  of  the  select- 
men of  the  town,  and  that  the  words  were  spoken  in  an  open  town- 
meeting  during  an  election,  at  which  the  defendant  was  acting  in 
his  capacity  as  a  public  officer.  It  appears  to  us  that  this  falls  under 
both  branches  of  the  rule  stated.  It  is  therefore  to  be  deemed  a 
privileged  communication. 

Such  being  the  occasion  of  speaking  the  words,  as  it  appeared 
on  the  proof  of  the  plaintiff's  case,  any  evidence  which  tended  to 
prove  that  the  defendant  was  acting  in  good  faith,  in  the  discharge 
of  his  duty,  was  competent  to  repel  the  charge  of  express  malice,  or 
colorable  pretence.  \\"\t\\  this  view  it  was  competent  to  show  that 
the  manner  of  the  plaintiff's  voting  at  the  time  the  words  were  ut- 
tered, was  such  as  to  excite  suspicion  and  induce  a  belief,  that  the 
plaintiff  put  in  more  votes  than  one.  It  was  in  effect  proof  of  prob- 
able cause,  which  is  allowable,  when  the  occasion  of  speaking  the 
words  affords  prima  facie  evidence  of  an  excuse  for  speaking  them. 
Remington  v.  Congdon.  2  Pick.  310.  And  we  think  that  this  in  no 
degree  impugns  the  rule,  that  in  ordinary  actions  of  slander,  where 
the  occasion  furnishes  no  prima  facie  excuse,  the  truth  of  the  words 
spoken  cannot  be  given  in  evidence  under  the  general  issue. ^ 


FAHR  V.  HAYES. 

Supreme  Court  of  Nctv  Jersey,  1888.     50  N.  J.  L.  275. 

DixON,  J.     So  much  being  established  on  behalf  of  the  defend- 
ant, it  then  became  incumbent  on  the  plaintiff  to  show  that  the  de- 

^  So  comment  otherwise  fair  loses  its  immunity  if  shown  to  be  inspired 
by  actual  malice,  Thomas  v.  Bradbury,  Agnew  &  Co.,  L.  R.  1906.  2  K.  B.  627; 
Tawney  v.  Simoiison,  Whitcomb  &  Hi'rley  Co.,  109  Minn.  341   (1909). 


J 


OVER   V.    SCHIFFLING.  II59 

famatory  words  were  uttered  out  of  what  is  called  express  malice. 
If  he  produced  any  evidence  from  which  express  malice  could  le- 
gally be  inferred,  then  it  was  proper  to  submit  the  question  to  the 
jury ;  if  he  did  not,  a  verdict  for  the  defendant  should  have  been 
directed. 

By  express  malice  in  this  connection  is  meant  some  motive,  ac- 
tuating the  defendant,  different  from  that  which  prima  facie  ren- 
dered the  communication  privileged,  and  being  a  motive  contrary  to 
good  morals.^  The  motive  which  in  the  present  case  the  law 
prima  facie  imputes  to  the  defendant,  in  regarding  his  conduct  as 
innocent,  is  a  desire  to  give  Thoma  (who  had  made  inquiries  of  the 
defendant  as  to  the  credit  of  the  plaintiff,  a  former  customer  of  the 
defendant's)  true  information,  in  order  to  prevent  his  crediting  the 
plaintiff,  whom  the  defendant  thought  not  worthy  of  credit,  and 
hence  the  question  here  is  whether  the  evidence  tended  to  establish 
any  other  motive  contrary  to  good  morals. 

The  language  used  by  the  defendant  fairly  discloses  another 
motive  than  the  imputed  one,  not  indeed  inconsistent,  but  rather 
conjoined  with  it,  viz.,  indignation  towards  the  plaintiff  for  his 
supposed  crime.  This  motive,  however,  is  not  contrary  to  good 
morals,  and  therefore  cannot  be  ranked  as  malicious  per^  se,  and 
so  long  as  it  does  not  impel  its  possessor  into  an  illegal  act  it  cannot 
subject  him  to  the  condemnation  of  the  law.  At  the  time  now  un- 
der review  it  did  not  betray  the  defendant  into  any  expression  be- 
yond what  was  pertinent  to  the  subject  of  Thoma's  inquiry,  and 
was  honestly  believed  by  the  defendant  and  therefore  was  legalized 
by  the  privileged  occasion  and  motive.^ 


SCHIFFLING. 
Supreme  Court  of  Indiana,  1885.     102  Ind.  191. 

Elliot,  J.  The  complaint  of  the  appellee  alleges  that  the  ap- 
pellant maliciously  published  a  libel;  that  the  libellous  matter  was 
contained  in  a  letter  written  by  the  latter  to  a  corporation  called  the 
Encaustic  Tile  Company,  by  whom  the  appellee  was  then  employed. 
The  letter,  omitting  the  date,  address,  signature  and  formal  part, 
is  as  follows : 

"Mr,  Schiffling  owes  me  on  work  done  on  your  dies,  etc.,  $33. 

^  It  is  not  necessary  that  the  communication  be  inspired  by  personal  ill- 
v/ill  or  animosity  toward  the  plaintiff,  Cattis  v.  Kilgo,  128  N.  Car.  402  (1901). 
p.  407,  where  it  was  held  that  the  trial  judge  had  properly  refused  the  de- 
fendant's request  for  an  instruction,  that  "malice  in  fact  means  personal  ill- 
will  and  a  desire  to  injure  the  plaintiff,"  saying  "that  if  the  publication  was 
not  in  good  faith  for  the  reason  claimed,  but  froin  a  wrongful,  indirect  and 
ulterior  motive  and  was  false,  the  same  was  malicious" ;  Bhimhardt  v.  Rohr, 
70  Md  328  (1889)  ;  Hellstent  v.  Katzcr.  103  Wis.  391  (1899)  ;  but  see  Bacon 
V.  Mich.  Cent.  R.  Co.,  66  Mich.  166  (1887). 

'In  Cranfill  v.  Haydcn,  97  Tex.  544  (1904),  it  is  held  the  desire  to  injure 
the  plaintiff  need  not  be  the  sole  or  even  the  dominant  motive. _  The  de- 
fendant is  protected  only  when  the  desire  to  perform  his  duty  is  his  sole 
motive  for  making  the  communication. 


Il6o  CLARK   V.    MOLYNEUX. 

If  you  would  consent  to  retain  such  amount  out  of  any  money  due 
him  from  you,  let  me  know  by  return  mail.  If  you  will  not  consent 
to  do  so,  I  shall  have  to  file  a  mechanic's  lien  on  the  goods.  He  got 
them  of  me  by  lying ;  first,  he  said  he  would  bring  an  order  from 
you,  then  he  would  pay  cash  for  them  before  he  took  them  away.  He 
then  watched  his  chances  and  took  them  when  the  foreman  was  not 
in,  and  now  refuses  payment." 

It  is  also  alleged  that  the  appellee  was  dismissed  from  the  serv- 
ice of  the  corporation  to  whom  the  letter  was  addressed,  and  he 
demanded  special  and  general  damages. 

The  letter  was  not  a  privileged  communication.  The  informa- 
tion it  professes  to  contain  was  volunteered,  and  the  purpose  for 
which  it  was  conveyed  to  the  appellee's  employer  was  solely  for 
the  benefit  of  the  writer,  and  was  not  intended  to  benefit  the  em- 
ployer by  giving  him,  in  good  faith  and  for  a  just  purpose,  infor- 
mation necessary  for  his  protection  against  a  knavish  servant.^ 


CLARK  V.  MOLYNEUX. 

Court  of  Appeal,  1877.    Law  Reports  1877-78,  3  Q.  B.  Div.  237. 

The  action  was  for  slander  and  libel. 

The  plaintiff,  a  clergyman  of  the  Church  of  England,  had  been 
formerly  in  the  army  and  after  taking  his  degree  at  Cambridge  was 
ordained  and  became  curate  at  Assington  to  the  Reverend  H.  L. 
,AIaud. 

In  1876,  the  defendant,  the  Reverend  Canon  Molyneux,  the 
Rector  of  Sudbury  near  Assington,  in  calling  on  a  Mr.  Bevan  with 
whom  he  had  been  intimate  for  many  years,  was  informed  by  him 
that  the  plaintiff  was  going  to  preach  at  Newton  Church  in  the 
neighborhood  and  that  he  was  sure  that  if  Mr.  Charles  Smith,  the 
rector,  knew  what  sort  of  a  person  the  plaintiff  was  he  would  never 
permit  him  to  preach.  Mr.  Bevan  asked  the  defendant  as  an  old 
friend  of  Mr,  Smith's  to  let  him  know  what  the  plaintiff's  char- 

'^ Accord:  Hollenbeck  v.  Ristine,  114  Iowa  358  (1901),  similar  facts; 
Beals  V.  Thompson,  149  Mass.  405  (1889),  similar  statements  made  to  plain- 
tiff's husband  in  an  effort  to  induce  him  to  pay  a  debt  contracted  by  her  be- 
fore her  marriage;  but  see  Fainnan  v.  Ives,  5  B.  &  Aid.  642  (1822),  where 
a  letter  to  the  plaintiff's  commanding  officer  complaining  of  his  refusal  to  pay 
a  debt  to  the  defendant  and  asking  such  officer  to  enforce  payment,  was  held 
privileged.  So  it  was  held  that  a  communication  by  the  defendant,  a  rival 
trader,  of  statements  derogatory  to  the  plaintiff's  goods  "from  motives  of  per- 
sonal gain  to  be  secured  through  injury  to  a  rival  in  business"  was  not  privi- 
leged, Brozvn  v.  Vannaman,  85  Wis.  451  (1893)  ;  and  see  Hubbard  v.  Rutledge, 
57  Miss.  7  (1879). 

In  Hooper  v.  Truscott,  2  Bing.  N.  C.  457  (1836),  a  charge  of  felony  made 
to  the  plaintiff's  relatives  to  induce  them  to  pay  hush  money  was  held  not  10 
be  privileged;  see  also,  Smith  v.  Hodgekins,  Cro.  Car.  273  (1633),  and  in  Jack- 
son V.  Hoppcrton,  16  C.  B.  (X.  S. )  829  (1864),  the  fact  that  the  defendant 
did  not  make  his  charge  against  the  plaintiff'  till  she  threatened  to  leave  his 
service,  and  told  her  that  he  would  say  nothing  about  it  if  she  returned  and 
would  give  her  a  reference  if  she  confessed,  was  held  suff.cient  evidence  of 
malice  to  support  a  verdict  for  the  plaintiff. 


CLARK    V.    MOLVXEUX.  I161 

acter  was.  The  defendant  placing  implicit  reliance  upon  Mr.  Bevan 
and  thinking  it  was  his  duty  to  ac(iuaint  Mr.  Charles  Smith  of  the 
matter,  went  to  his  house  and  finding  him  ill  in  bed  communicated 
his  information  to  ^Ir.  Smith's  son,  also  a  clergyman,  who  was 
there.  The  defendant  afterwards  consulted  his  rural  dean  as  to 
whether  he  should  speak  to  the  plaintiff's  rector  Mr.  Maud,  the 
dean  advised  him  to  do  so.  As  Mr.  Maud  was  abroad  the  defendant 
spoke  to  his  solicitor  on  the  subject  and  on  Mr.  Maud's  return  he 
received  a  letter  from  him  asking  for  information  and  wrote  an 
answer  detailing  the  facts  as  stated  by  Mr.  Bevan.  The  defendant 
also  consulted  his  curate  who  had  been  with  him  for  many  years 
and  whom  he  invariably  consulted  about  all  church  matters.  The 
communications  to  the  curate,  to  Mr.  Smith's  son  and  to  the  dean 
were  the  slanders  complained  of,  and  the  letter  to  Mr.  Maud  was 
the  libel  complained  of.  The  defendant  relied  solely  upon  the  privi- 
lege of  the  occasion  and  bona  fides  of  his  statements. 

The  action  was  tried  before  Baron  Huddleston  and  a  special 
jury.  The  learned  judge  ruled  that  all  the  occasions  were  privileged 
and  the  case  went  to  the  jury  on  the  question  of  express  malice. 
The  jury  found  a  verdict  for  the  plaintifif  for  £200  damages. 

The  defendant  moved  for  a  new  trial  in  the  Queen's  Bench 
Division  on  the  ground  that  the  verdict  was  against  the  weight  of 
the  evidence  and  of  the  misdirection  of  the  court  complaining  of 
the  general  tenor  of  the  summing  up  and  particularly  the  following 
passage  therein : 

"You,  Mr.  Molyneux,  may  defend  yourself  by  the  fact  that 
these  occasions  were  privileged,  but  to  do  so  yOU  must  satisfy  a 
jury  that  what  you  did  you  did  bona  fide  and  in  the  honest  belief 
that  you  were  making  statements  which  were  true.  *  *  *  What 
you  have  to  consider  is  this :  assuming  that  these  occasions  were 
privileged,  do  you  think  that  the  defendant  made  these  statements 
and  wrote  this  letter  bona  fide  and  in  the  honest  belief  that  they 
were  true,  not  merely  that  he  believed  them  himself,  but  honestly 
believed  them — which  means  that  he  had  good  ground  for  believing 
them — to  be  true?  I  mean  to  say  that  if  he  pertinaciously  and  ob-_ 
stinately,  perhaps,  persuaded_himself  _oi  a  matter  for  which  per- 
suasion he  had  no  reasSiiable  ground,  and  with  respect  to  which  per- 
suasion you  twelve  genHemen  would  say  he  was  perfectly  unjus- 
tified    *     *     *     then  your  verdict  will  be  for  the  plaintiff." 

The  court  ref usedThe'lMne^  and  the  defendant  appealed. 

Bramwell,  L.  J.  Before  I  proceed  further  in  discussing  the 
language  of  the  summing-up,  I  wish  to  remark  that  a  person  may 
honestly  make  on  a  particular  occasion  a  defamatory  statement 
without  believing  it  to  be  true ;  because  the  statement  may  be 
of  such  a  character  that  on  the  occasion  it  may  be  proper  to  com- 
municate it  to  a  particular  person  who  ought  to  be  informed  of  it. 
Can  it  be  said  that  the  person  making  the  statement  is  liable  to  an 
action  for  slander?  In  the  present  case  the  judge  asked  the  jury 
whether  the  defendant  did  what  is  complained  of  in  the  honest  be- 
lief that  what  he  wrote  and  said  with  reference  to  the  plaintiff  was 
true.    At  a  later  period  of  the  summing-up  the  judge  explains  what 


Il62  CLARK    V.    MOLYNEUX. 

he  means  by  honest  behef ;  and  the  effect  of  his  language  is,  that 
the  jury  must  have  been  led  to  think  that  "honest  belief"  means, 
not  the  actual  belief  in  the  defendant's  mind,  but  belief  founded 
upon  reasonable  grounds.  Apart,  therefore,  from  the  question 
upon  whom  the  burden  of  proof  lay,  I  think  there  was  a  misdirec- 
tion as  to  the  meaning  of  the  term  "honest  belief,"  and  that  the 
verdict  against  the  defendant  cannot  stand. 

Brett,  L.  J.^  I  am  of  opinion  that  there  was  a  misdirection  by 
the  learned  judge  to  the  jury ;  that  the  verdict  was  against  the 
weight  of  the  evidence ;  and  that  there  was  no  evidence  of  malice 
which  ought  to  have  been  left  to  the  jury. 

With  regard  to  the  misdirection,  we  do  not  differ  from  the 
Queen's  Bench  Division  as  to  the  rule  of  law  which  governs  this 
case,  but  we  think  that  the  direction  of  the  learned  judge  was  cal- 
culated to  mislead  the  jury  as  to  what  was  the  right  question  for 
their  decision.  The  direction  to  the  jury  was  founded  on  the  as- 
sumption that  the  occasions  were  privileged,  and  that  which  must 
be  taken  to  be  a  libel  would  be  excused  if  the  defendant  had  used 
the  privilege  fairly  and  honestly.  Before  I  address  myself  to 
the  summing-up,  I  think  it  advisable  to  lay  down  what  I  consider 
would  be  a  true  exposition  of  the  law  in  such  matters.  When 
there  has  been  a  writing  or  a  speaking  of  defamatory  matter,  and  the 
judge  has  held — and  it  is  for  him  to  decide  the  question — that  al- 
though the  matter  is  defamatory  the  occasion  on  which  it  is  either 
written  or  spoken  is  privileged,  it  is  necessary  to  consider  how,  al- 
though the  occasion  is  privileged,  yet  the  defendant  is  not  permitted 
to  take  advantage  of  the  privilege.  If  the  occasion  is  privileged 
it  is  so  for  some  reason,  and  the  defendant  is  only  entitled  to  the 
protection  of  the  privilege  if  he  uses  the  occasion  for  that  reason. 
He  is  not  entitled  to  the  protection  if  he  uses  the  occasion  for  some 
indirect  and  wrong  motive.  (One,  but  by  no  means  the  only,  indi- 
rect motive  which  can  be  alleged,  is  the  gratification  of  some  anger 
or  malice  of  his  own.)  If  he  uses  the  occasion  to  gratify  his  anger 
or  malice,  he  uses  the  occasion  not  for  the  reason  which  makes  the 
occasion  privileged,  but  for  an  indirect  and  wrong  motive.^  If  the 
indirect  and  wrong  motive  suggested  to  take  the  defamatory  matter 
out  of  the  privilege  is  malice,  then  there  are  certain  tests  of  malice. 
Alalice  does  not  mean  malice  in  law,  a  term  in  pleading,  but  actual 
malice,  that  which  is  properly  called  malice.  If  a  man  is  proved  to 
have  stated  that  which  he  knew  to  be  false,  no  one  need  inquire 
further.  Everybody  assumes  thenceforth  that  he  was  malicious, 
that  he  did  do  a  wrong  thing  for  some  wrong  motive.     So  if  it  be 


^  Those  portions  of  the  opinion  of  Brett,  L.  J.  which  are  enclosed  in 
brackets  are  taken  from  the  report  of  the  case  in  47  L.  J.,  C.  L.  238. 

'The  fact  that  the  defendant  was  angry  when  he  made  the  statements 
is  sufficient  evidence  of  malice  to  support  a  verdict,  Robinson  v.  Van  Auken, 
190  Mass.  161  (1906),  or  that  he  had  expressed  a  desire  to  injure  the  plaintiff, 
Hollenheck  v.  Ristine,  105  Iowa  488  (1898),  or  that  he  had  made  other  de- 
famatory statements  or  repeated  the  same  charges  on  prior  or  subsequent  oc- 
casions, Tarpley  v.  Blabey,  2  Bing.  N.  C.  437  (1836)  ;  Seaman  v.  NethercUft, 
L.  R.  1  C.  P.  D.  540  (1876)  ;  Evening  Journal  v.  McDermott,  44  N.  j.  L.  430 
(1882),  unless  such  occasions  were  themselves  privileged,  Fahr  v.  Hayes,  SO 


^  CLARK    V.    MOLVXEUX.  I163 

proved  that  out  of  anger,  or  for  some  other  wrong  motive,  the  de- 
fendant has  stated  as  true  that  which  he  does  not  know  to  be  true," 
or  he  has  stated  it  whether  it  is~true  orjiot^ecklessTy,  by  reason  of 
his  anger  or  other  motive,  the  jury  niay  infer  tliathe  used  the  oc- 
casion, not  for  the  reason  which  justJficSTtTbtrt  for  the  gratification 
of  his  anger  or  other  indirect  motive.  "iTfhink:  I  have  laid  down 
the  correct  rule  on  which  to  ground  the  direction  to  the  jury,  and  I 
think  the  learned  judge  did  not  follow  that  rule,  but  he  so  expressed 
himself  that  the  jury  would  be  misled  into  following  other  rules. 
I  think  the  jury  were  misled  into  believing  that  the  burden  of  proof, 
that  the  defendant  was  not  actuated  by  malice  in  the  statements  he 
had  made,  lay  upon  the  defendant  rather  than  on  the  plaintiff.  I 
apprehend  the  moment  the  judge  rules  that  the  occasion  is  privileged, 
the  burden  of  showing  that  the  defendant  did  not  act  in  respect  of 
the  reason  of  the  privilege,  but  for  some  other  and  indirect  reason, 
is  thrown  upon  the  plaintifif.*  I  also  think  that  the  learned  judge 
was  mistaken  in  the  definition  of  malice  he  gave  to  the  jury,  and 
the  jury  might  have  been  misled  by  his  leaving  to  them  to  apply 
that  definition  to  the  question  of  what  was  malice  in  fact.     I  am 


N.  J.  L.  275  (1888),  p.  281,  or  that  the  relation  between  the  parties  was 
strained,  Thomas  v.  Bradbury,  Agnezv  &  Co.,  L.  R.  1906,  2  K.  B.  627,  Dickson 
v.  Earl  of  Wilton,  1  F.  &  F.  419  (1859),  or  that  they  had  quarreled,  Rogers  v. 
Clifton,  3  B.  &  P.  587  (1803),  or  that  the  plaintifif  had  given  the  defendant 
cause  to  desire  revenge,  Comfort  v.  Young,  100  Iowa  627  (1897),  where  the 
plaintiff  had  caused  the  defendant  to  be  prosecuted  for  operating  a  creamery 
on  Sunday  or  any  other  fact  from  which  the  existence  of  ill-will  on  the  de- 
fendant's part  can  be  legitimately  inferred,  Kelly  v.  Partington,  4  B,  &  Ad. 
700  (1833)  ;  Hemmings  v.  Gasson,  E.  B.  &  E.  346  (1858)  ;  McGaiv  v.  Hamil- 
ton, 184  Pa.  St.  108  (1898).  As  to  effect  of  the  fact  that  the  information  is 
volunteered  as  evidence  of  malice,  see  Pattison  v.  Jones,  ante,  p.  1096. 

^Accord:  Briggs  v.  Garrett,  111  Pa.  St.  404  (1886),  "a  lie  is  never  privi- 
leged," "it  is  mistakes,  not  lies,  that  are  protected  under  the  doctrine  of  privi- 
lege"—Paxson.  J.,  p.  414;  Gassett  v.  Gilbert,  6  Gray  94  (Mass.  1859)  ;  State  v. 
Schmitt,  49  N.  J.  L.  579  (1887),  and  see  Holmes  v.  Clisby,  121  Ga.  241 
(1904),  p.  246. 

*If  the  court  finds  that  the  occasion  is  privileged  the  burden  of  proving 
malice  rests  on  the  plaintiff,  Bearce  v.  Bass,  88  Maine  521  (1896)  ;  Hagan  v. 
Hendry,  18  Md.  177  (1862)  ;  Simmons  v.  Holster.  U  Minn.  249  (1868)  ;  King 
V.  Patterson  49  N.  J.  L.  417  (1887)  ;  Barrv  v.  McCoUom,  81  Conn.  293  (1908)  ; 
McDavitt  v.  Boxer,  169  111.  475  (1897)  :  Jcnoure  v.  Dcbnegc,  L.  R.  1891,  A.  C. 
7Z;  Bacon  v.  Michigan  Cent.  R.  Co.,  66  Mich.  166  (1887)  ;  Hemmens  v.  Nelson, 
138  N.  Y.  517  (1893)  ;  Gray  v.  Pentland,  4  Serg.  &  R.  420  (Pa.  1819)  ;  Brock- 
erman  v.  Keyscr,  8  Legal  Int.  238  (Pa.  1851)  ;  Missouri  Pac.  R.  Co.  v.  Rich- 
mond, 7Z  Tex.  568  (1889)  ;  Strode  v.  Clement,  90  Ya.  553  (1894)  ;  Chambers  \. 
Leiser,  43  Wash.  285  (1906);  Locke  v.  Bradstreet  Co.,  22  Fed.  771  (1885). 
Contra:  Wakefield  v.  Smithwick,  49  N.  Car.  2,27  (1857)  ;  and  see  Atwater  v.  > 
Morning  Neivs  Co..  67  Conn.  504  (1896)  ;  and  this  requires  the  plaintiff,  if 
he  questions  the  defendant's  belief  in  the  truth  of  his  statements,  to  prove 
that  the  defendant  had  no  honest  belief,  Jenoiire  v.  Dclmege,  L.  R.  1891,  A. 
C.  73. 

In  Conroy  v.  Pittsburgh  Times,  139  Pa.  St.  334  (1891),  it  is  held  that 
where  the  alleged  libel  or  slander  charges  an  indictable  offense,  there  is  a 
presumption  of  innocence  thereof,  throwing  on  the  defendant  the  burden  of 
proving  that  the  charge  was  made  in  good  faith  and  on  prol)able  cause,  see 
contra,  McDavitt  v.  Boyer,  169  111.  475  (1897),  and  such  accusations  can  only 
l-e  justified  by  proof  of  such  probable  cause  for  believing  them.  Shelly  v. 
.  .nnpman,  1  Pa.  Sup.  Ct.  115   (1896),  and  such  inquiry  as  would  justify  in- 


I  164  CLARK    V.    MOLYNEUX. 

further  of  opinion  that  the  direction  to  the  jury — that  assuming 
that  the  occasions  were  privileged  if  they  thought  that  the  defend- 
ant wrote  the  letter,  and  made  the  statements  bona  fide,  and  in  the 
honest  belief  that  they  were  true,  not  merely  that  he  believed 
them  himself,  but  honestly  believed  them,  which  means  that  he  had 
good  grounds  for  believing  them  to  be  true, — left  the  jury  to  sup- 
pose that,  although  the  defendant  did  believe  them  in  fact,  yet  that 
did  not  protect  him  unless  his  belief  was  reasonable :  whereas  the 
only  question  was  whether  the  defendant  did,  in  fact,  believe  what 
he  said,  and  not  whether  a  reasonable  man  would  have  believed  it. 
The  question  of  wilful  blindness,  or  of  an  obstinate  adherence  to 
an  opinion,  may  be  tests  by  which  a  jury  may  be  led  to  consider 
whether  the  defendant  did  or  did  not  really  believe  the  statements 
he  made;"  whereas  the  learned  judge,  by  the  way  in  which  he  di- 
rected the  jury,  left  them  to  understand,  as  I  think,  that  although 
the  defendant  did  believe  the  statements,  yet  if  his  belief  was 
founded  on  a  wrong  reasoning  that  he  was  not  within  the  protection 
of  the  privilege.  (Questions  of  pig-headedness  and  obstinacy  may 
be  tests  as  to  whether  a  man  really  did  honestly  believe  or  not,  but 
Baron  Huddleston  left  them  as  if  they  were  of  the  essence  of  the 
definition  of  malice.)  In  that  respect,  with  great  deference  I  think, 
the  learned  judge's  direction  to  the  jury  was  erroneous.® 


stituting  a  prosecuticn,  Neeb  v.  Hope,  111  Pa.  St.  145  (1886),  semble,  Ingram 
V.  Reed,  6  Pa.  Sup.  Ct.  550  (1897)  ;  Collins  v.  Morning  News,  6  Pa.  Sup.  Ct. 
330  (1898),  and  see  Coatcs  v.  Wallace,  4  Pa.  Sup.  Ct.  253  (1897),  holding  that 
one  publishing  statements  aspersing  the  character  of  a  candidate  for  office 
must  show  the  circumstances  which  led  him  to  beHeve  his  charges  to  be  true. 

'"  The  facts  within  the  defendant's  knowledge  are  always  admissible  to 
prove  or  disprove  the  absence  of  honest  belief,  Fountain  v.  Boodle,  3  A.  &  E. 
(N.  S.)  5  (1842);  Gassett  v.  Gilbert,  6  Gray  94  (Mass.  1858);  Bradley  v. 
Heath,  12  Pick.  163  (Mass.);  Atwill  v.  Mackintosh,  120  Mass.  177  (1876); 
Wagner  v.  Scott,  164  Mo.  289  (1901),  especially  where  the  charge  is  against 
a  pubHc  officer.  Fairman  v.  Ives,  5  B.  &  Aid.  642  (1822)  ;  Robinson  v.  May, 
2  Smith  3  (1804).  See  also  Sunley  v.  Met.  Life  Ins.  Co.,  132  Iowa  123 
(1906),  in  which  it  is  assumed  that  the  fact  that  the  plaintiff  had  properly 
accounted  with  the  defendant's  agent  was  equivalent  to  knowledge  on  the 
part  of  such  agent  of  the  true  state  of  that  account. 

^The  defendant's  belief  may  be  founded  on  hearsay,  Aberdein  v.  Mac- 
leay,  9  Times  L.  R.  539  (1893)  ;  Briggs  v.  Garrett,  111  Pa.  St.  404  (1886)  ; 
Maitland  v.  Bramwcll,  2  F.  &  F.  623  (1861),  and  this  though  the  defendant's 
only  ground  of  her  belief  is  her  implicit  confidence  in  her  informant,  Hcs- 
keth  v.  Brindle,  4  Times  L.  R.  199  (1888),  a  daughter  writing  under  her  own 
name  at  her  father's  dictation,  though  it  is  better  to  state  the  source  of 
one's  information,  as  by  producing  or  quoting  the  letter  which  conveys  the  in- 
formation, Robshaw  w.' Smith,  28  L.  T.  423  (1878)  ;  Briggs  v.  Garrett,  111  Pa. 
St.  404  ( 1886)  ;  Elliott  v.  Garrett,  L.  R.  1902.  1  K.  B.  870,  in  which  it  seems  to 
be  suggested  that  it  may  be  the  defendant's  duty  to  investigate  the  truth  of  the 
matter  stated  to  him  by  third  persons.  But  a  defendant  who  signs  a  letter 
without  taking  care  to  ascertain  its  contents  is  not  protected  by  his  belief 
that  it  contained  only  statements  which  he  was  entitled  to  communicate 
and  which  he  believed  true,  tlohnes  v.  Clisby,  121  Ga.  241  (1904),  and 
in  Met.  Life  Ins.  Co.  v.  Sunley,  132  Iowa  123  (1906),  it  was  held  that  the 
knowledge  of  the  defendant's  agent  was  its  knowledge  and  that  a  statement 
made  by  its  home  office  in  good  faith  m  reliance  on  an  agent's  report  was  ma- 
licious in  fact  if  he  knew  facts  which  made  it  false.  The  mere  fact  that  the  de- 
fendant admits  that  he  cannot  prove  the  truth  of  his  statements  does  not 


TOOTHAKER   V.    CON  ANT,  II65 

Assuming  that  the  right  question  had  been  left  to  the  jury,  is 
there  any  evidence  to  support  the  finding  of  maHce?  Now,  the 
occasion  being  privileged,  the  burden  of  proof  to  show  that  the 
defendant  was  not  within  the  protection  of  the  privilege  being  on 
the  plaintiff,  and  it  being  an  admitted  fact  that  the  defendant  did 
not  know  the  plaintiff,  had  never  even  seen  him,  and  that  he  had  no 
relations  with  him  whatever,  and  no  motive  can  be  suggested  why 
the  defendant  should  have  a  vindictive  feeling  against  the  plain- 
tiff, 1  think  that  the  discrepancies  which  were  relied  upon,  and 
the  want  of  care  in  instituting  inquiries,  are  too  slight  to  justify 
a  judge  in  asking  the  jury  whether  the  defendant  was  actuated  by 
indirect  motives  in  making  the  statements.  He  certainly  did  not 
make  them  from  a  want  of  belief  in  them,  nor  was  he  influenced  by 
anger  in  making  them,  not  caring  whether  they  were  true  or  false.' 


TOOTHAKER  v.  CONANT. 

Supreme  Judicial  Court  of  Maine,  1898.    91  Maine  438. 

Peters,  C.  J.  The  exceptions,  in  this  action  of  slander,  ever 
so  brief,  are  as  follows :  "The  defendant  claimed  the  words  used 
were  privileged,  and  requested  the  presiding  justice  to  instruct  the 
jury  that  the  question  for  them  to  decide  was  not  whether  the 
language  used  was  true,  nor  whether  the  defendant  had  reasonable 
ground  to  believe  it  to  be  true,  but  whether  he  honestly  believed  it 
to  be  true.  This  the  justice  refused  to  do  and  instructed  the  jury 
that  he  must  have  reasonable  and  probable  grounds  for  his  belief  or 
his  belief  would  be  no  defense.  The  verdict  was  for  the  plaintiff. 
To  which  refusal  the  defendant  excepts." 

There  is  nothing  to  inform  us  what  the  alleged  slanderous  words 
were,  nor  what  the  circumstances  were  under  which  the  words 
were  spoken.  While  the  phrase  "honest  belief"  may  be  found  in 
legal  opinions  which  undertake  to  define  privileged  communications, 
the  phrase  without  addition  or  qualification  is  not  adequate  and 
sufficient  as  a  definition  of  the  law  of  justification  for  what  would 
otherwise  be  regarded  as  slanderous  words.  A  man  may  inflict 
an  injury  upon  another  without  intending  any  injury,  and  still  be 
liable  for  his  unjustifiable  act.  Malice  in  the  popular  sense  need 
not  appear  in  order  to  sustain  an  action  for  slander.     Even  acci- 


destroy  his  privilege.  Billings  v.  Fairbanks.  139  Mass.  66  (1885).  As  to  whether 
mere  honest  suspicion  is  enough  compare  the  above  case,  where  the  defend- 
ant accused  the  plaintiff  of  theft  in  the  presence  of  a  third  person,  with 
Smedley  v.  Sonle,  125  Mich.  192  (1900),  where  the  accusation  was  against  a 
pubhc  official. 

'Accord:  Barry  v.  McCollum,  81  Conn.  293  (1908);  Bays  v.  Hunt,  60 
Iowa  251  (1882)  ;  Hemmens  v.  yelson,  138  N.  Y.  517  (1893)  ;  Haft  v.  Bank. 
19  App.  Div.  423  (N.  Y.  1897);  Chambers  v.  Leiser,  43  Wash.  285  (1906). 
In  some  jurisdictions,  while  the  precise  question  has  not  arisen,  it  is  said 
without  qualification  that  the  statement  must  be  made  "in  good  faith".  Bacon 
V.  Michigan  Cent.  R.  Co.,  66  Mich.  166  (1887)  ;  Gattis  v.  Kilgo,  128  N.  Car. 
402    (1901). 


11(36  TOOTIIAKEU    r.    COXANT. 

dental  injuries  are  actionable  unless  the  person  causing  the  in- 
jury be  free  from  all  fault.  Carelessness  which  causes  an  injury 
is  generally  a  sufficient  foundation  for  an  action.  But  a  person 
may  through  carelessness  or  negligence  commit  a  wrongful  act, 
and  honestly  think  or  believe  he  is  doing  no  wrong.  And  the  de- 
fendant here,  in  order  to  clear  himself  from  the  imputation  of  care- 
lessness, should  show  not  only  that  he  was  acting  in  an  honest  be- 
lief that  the  story  communicated  by  him  was  true,  but  that  there 
were  reasonable  grounds  to  induce  such  belief.  Otherwise,  an  in- 
jury might  be  wrongfully  inflicted  upon  an  innocent  person  and 
he  have  no  remedy  or  redress  for  it.  Bearce  v.  Bass,  88  Alaine,  543, 
is  cited  by  the  defense  where  the  learned  justice  adopted  in  his 
opinion  the  phrase  "honest  belief,"  but  he  added  thereto  the  words, 
"such  belief  being  founded  on  reasonable  and  probable  grounds." 

Exceptions  overruled.^ 

^Accord:  Hehner  v.  Gt.  Northern  R.  Co.,  78  Minn.  289  (1899)  ;  Carpen- 
ter V.  Bailey,  53  N.  H.  590  (1873)  ;  Briggs  v.  Garrett,  111  Pa.  St.  404  (1886)  ; 
Mulderig  v.  IVilkcsbarre  Times,  215  Pa.  St.  470  (1906);  Ranson  v.  West. 
125  Ky.  457,  semhle.  In  Carpenter  v.  Bailey,  Briggs  v.  Garrett  and  Mulderig 
V.  Times,  the  defamation  published  was  of  a  public  official  or  candidate  for 
office,  see  note  3  to  Coleman  v.  MacLennan,  ante,  p.  1073,  and  see  Odgers. 
Slander  and  Libel,  4th  ed.,  p.  342,  citing  Fairman  v.  Ives,  5  B.  &  Aid.  642 
(1822),  and  Robinson  v.  May,  2  Smith  3  (Eng.  K.  B.  1804),  and  see  Smedley 
V.  Sotile,  125  Mich.  192  (1900).  So  it  was  held  in  Locke  v.  Bradstreet  Co.. 
22  Fed.  771  (C.  C.  East.  Dist.  of  Minn.  1885),  and  Douglas  v.  Daisley.  114 
Fed.  628  (C.  C.  A.  1st  Circ.  1902),  that  reports  by  commercial  agencies  to 
their  subscribers  are  only  privileged  if  care  is  taken  to  secure  and  publish 
reliable  information. 

In  McNally  v.  Burleigh,  91  Maine  22  (1897),  it  is  said  that  there  must 
be  belief  "based  upon  reasonable  and  probable  grounds  after  a  reasonably 
careful  inquiry";  and  compare  Neeb  v.  Hope,  111  Pa.  St.  145  (1886),  with 
Briggs  v.  Garrett,  111  Pa.  St.  404  (1886)  and  Evening  Post  Co.  v.  Richard- 
son, 113  Ky.  641  (1902). 


I 


CHAPTER  IV. 

Acts  Necessary  to  Secure  One's  Economic  Advancement  by  Acts 
Necessarily  or  Intentionally  Harmful  to  Others. 


SECTION  1. 

Nature  of  the  Harm  Done — Interference  With  Business  or 
Employment. 


(a)   By  inducing  third  persons  to  break  their  contracts  with  the 

plaintiff. 


Form  of  action  given  in  La  Court  De  Baron,  (Circa  1300).  The  Court 
Baron  (Seldon  Soc.  Vol.  IV)  40.  Sir  steward,  William  (Vintner)  of 
Woodstock,  who  is  here,  complaineth  of  (Robert)  Baker,  who  is  there, 
that  wrongfully  he  supplanted  him  of  a  ton  of  wine  of  a  merchant  of 
Southampton,  Bernard  Taneys  by  name,  which  (the  plaintiff)  bought  of 
him  (Bernard)  for  36  s.  and  gave  (earnest)  and  found  pledges  to  duly 
pay  the  said  sum  on  a  certain  day  without  any  delay;  this  done,  came  the 
said  Robert  and  in  despite  of  (William),  who  is  here,  spake  so  much  ill 
and  villany  of  him  to  the  merchant  and  drove  his  own  bargain  so  that  the 
merchant  increased  the  price  of  the  ton  to  40  s.;  and  the  said  William  hired 
a  cart  with  four  horses  for  a  half-mark  to  carry  the  ton  from  Southampton 
to  his  house  at  Woodstock;  and  when  he  came  to  Southampton  he  found 
that  owing  to  what  Robert  had  said  the  merchant  was  now  of  another  mind, 
that  he  would  not  let  him  (have  the  wine)  and  told  him  right  out  that  he 
heard  tell  so  much  evil  of  him  that  he  would  give  him  no  credit;  and  so 
(William)  returned  from  the  port  with  the  cart  he  had  hired  as  empty  as 
when  he  took  it  thither,  and  none  the  less  had  to  pay  for  its  hire  on  the  day 
fixed  for  payment;  so  that  wrongfully  and  without  reason  did  he  (Robert) 
speak  evil  of  and  procure  evil  for  him  (William)  to  his  damage  of  40  s. 
and  shame  of  100  s.     If  confess  etc. 

Tort  and  force  and  all  that  to  tort  belongeth,  defendeth  (Robert),  who 
is  here,  against  William  of  Woodstock,  who  is  there,  and  his  damages  of 
40  s..  and  shame  of  100  s.  and  every  penny  of  it,  both  against  him  and 
against  his  suit  and  all  that  he  surmiseth  against  him;  and  well  he  showeth 
thee  that  never  did  he  supplant  him  of  the  said  ton  or  raise  the  price  against 
him  by  4  s.  or  any  penny  as  he  surmiseth;  and  of  this  he  is  ready  to  acquit 
himself  in  all  such  wise  as  this  court  shall  award  that  acquit  himself  he 
ought. 

Fair  friend  Robert  (saith  the  steward),  this  court  awardeth  that  thou 
be  at  a  law  six-handed  at  the  next  (court)  etc. 

1 167 


Il68  LUMLliV    V.    GVE. 

LUMLEY  V.  GYE. 
Court  of  Queen's  Bench,  1853.    2  Ellis  &  Blackburn's  Reports,  216. 

Ihe  first  count  of  the  declaration  stated  that  the  plaintiff  was 
lessee  and  manager  of  the  Queen's  Theatre  for  performing  operas 
for  gain  to  him ;  and  that  he  had  contracted  and  agreed  with  Jo- 
hanna Wagner  to  perform  in  the  theatre  for  a  certain  time,  with  a 
condition,  amongst  others,  that  she  should  not  sing  nor  use  her 
talents  elsewhere  during  the  term  without  plaintiff's  consent  in  writ- 
ing. /Yet  defendant,  knowing  the  premises,  and  maliciously  intend- 
ing to  injure  plaintiff  as  lessee  and  manager  of  the  theatre,  whilst 
the  agreement  with  Wagner  was  in  force,  and  before  the  expiration 
of  the  term,  enticed  and  procured  Wagner  to  refuse  to  perform ;  by 
means  of  which  enticement  and  procurement  of  defendant,  Wagner 
wrongly  refused  to  perform,  and  did  not  perform  during  the  term. 

Count  2.  For  enticing  and  procuring  Johanna  Wagner  to  con- 
tinue to  refuse  to  perform  during  the  term,  after  the  order  of  Vice 
Chancellor  Parker,  affirmed  by  Lord  St.  Leonard  (see  Liimley  v. 
Wagner,  i  DeG.  McN.  &  G.  604),  restraining  her  from  performing 
at  a  theatre  of  defendant's. 

Count  3.  That  Johanna  Wagner  had  been  and  was  hired  by 
plaintiff  to  sing  and  perform  at  his  theatre  for  a  certain  time,  as  the 
draniatic  artiste  of  plaintiff,  for  reward  to  her,  and  had  become  and 
was  such  dramatic  artiste  of  plaintiff  at  his  theatre.  Yet  defendant, 
well  knowing,  &c.,  maliciously  enticed  and  procured  her,  then  being 
such  dramatic  artiste,  to  depart  from  the  said  employment. 

In  each  count  special  damage  was  alleged. 

Demurrer,    Joinder.^ 

Erle,  J.  (The  question  raised  upon  this  demurrer  is,  Whether 
an  action  will  lie  by  the  proprietor  of  a  theatre  against  a  person 
)}■  who  maliciously  procures  an  entire  abandonment  of  a  contract  to 
^perform  exclusively  at  that  theatre  for  a  certain  time ;  wh^i;^by 
iMamage  was  sustained?  'And  it  seems  to  ipe  that  it  will.J;  "f  he  au- 
,  thorities  are  numerous  'and  uniform,  that^an  action  will  lie  by  a 
master  against  a  person  who  procures  that  a  servant  should  unlaw- 
^/  fully  leave  his  service.-j^  [^The  principle  involved  in  these  cases  com- 
prises the  present ;  for,  there,  the  right  of  action  in  the  master  arises 
from  the  wrongful  act  of  the  defendant  in  procuring  that  the  person 
hired  should  break  his  contract,  by  putting  an  end  to  the  relation  of 
employer  and  employed ;  and  the  present  case  is  the  sameJ  If  it  is 
objected  that  this  class  of  actions  for  procuring  a  breach  of  contract 
of  hiring  rests  upon  no  principle,  and  ought  not  to  be  extended  be- 
yond the  cases  heretofore  decided,  and  that,  as  those  have  related  to 
contracts  respecting  trade,  manufactures,  or  household  service,  and 
not  to  performance  at  a  theatre,  therefore  they  are  no  authority  for 
an  action  in  respect  of  a  contract  for  such  performance ;  the  answer 
appears  to  me  to  be,  that  the  class  of  cases  referred  to  rests  upon  the 

'The  opinion  of  Crompton,  J.,  is  much  abridged  and  that  of  Wightman, 
J.,  is  omitted. 


LUMLKV    r.    GVE.  1 169 

principle  that  the  procurement  of  the  violation  of  the  right  is  a  cause 
of  action,  and  that,  when  this  principle  is  applied  to  a  violation  of  a 
right  arising  upon  a  contract  of  hiring,  the  nature  of  the  service  con- 
tracted for  is  immaterial. ^It  is  clear  that  the  procurement  of  the 
violation  of  a  right  is  a  cause  of  action  in  all  instances  where  the 
violation  is  an  actionable  wrong,  as  in  violations  of  a  right  to  prop- 
erty, whether  real  or  personal,  or  to  personal  security :  he  who  pro- 
cures the  wrong  is  a  joint  wrongdoer,  and  may  be  sued,  either  alone 
or  jointly  with  the  agent,  in  the  appropriate  action  for  the  wrong 
complained  of.  I  Where  the  right  to  a  performance  of  a  contract  has 
been  violated  "By  a  breach  thereof,  the  remedy  is  upon  the  contract 
against  the  contracting  party ;  and,  if  he  is  made  to  indemnify  for 
such  breach,  no  further  recourse  is  allowed ;  and,  in  case  of  the 
procurement  of  a  breach  of  contract  the  action  is  for  a  wrong  and 
cannot  be  joined  with  the  action  on  the  contract,  and  as  the  act 
itself  is  not  likely  to  be  of  frequent  occurrence,  nor  easy  of  proof, 
therefore  the  action  for  this  wrong,  in  respect  of  other  contracts 
than  those  of  hiring,  are  not  numerous ;  but  still  they  seem  to  me 
sufficient  to  show  that  the  principle  has  been  recognized.  ^Xh.Wins- 
more  v.  Greenhank,  Willes,  577,  it  was  decided  that  the  procuring 
of  a  breach  of  the  contract  of  a  wife  is  a  cause  of  action.  The  only 
distinction  in  principle  between  this  case  and  other  cases  of  contract 
is,  that  the  wife  is  not  liable  to  be  sued:  but  the  judgment  rests  on 
no  such  grounds ;  the  procuring  a  violation  of  the  plaintiff's  right 
under  the  marriage  contract  is  held  to  be  an  actionable  wrong.  In 
Green  V.  Button,  2  C.  M.  &  R.  707,  it  was  decided  that  the  procuring 
a  breach  of  a  contract  of  sale  of  goods  by  a  false  claim  of  lien  is 
an  actionable  wrong.  Shepherd  v.  IVakcman,  i  Sid.  79,  is  to  the 
same  effect,  where  the  defendant  procured  a  breach  of  a  contract 
of  marriage  by  asserting  that  a  woman  was  already  married.  In 
Ashley  v.  Harrison,  i  Peake's  N.  P.  C.  194,  S.  C.  i  Esp.  N.  P.  C.  48, 
and  in  Taylor  v.  Neri,  i  Esp.  N.  P.  C.  386,  it  was  properly  decided 
that  the  action  did  not  lie,  because  the  battery,  in  the  first  case,  and 
the  libel,  in  the  second  case,  upon  the  contracting  parties  were  not 
shown  to  be  with  intent  to  cause  those  persons  to  break  their  con- 
tracts, and  so  the  defendants  by  their  wrongful  acts  did  not  procure 
the  breaches  of  contract  which  were  complained  of.  If  they  had  so 
acted  for  the  purpose  of  procuring  those  breaches,  it  seems  to  me 
they  would  have  been  liable  to  the  plaintiff'.  To  these  decisions, 
founded  on  the  principle  now  relied  upon,  the  cases  for  procuring 
breaches  of  contracts  of  hiring  should  be  added;  at  least  Lord 
Mansfield's  judgment  in  Bird  v.  Randall,  3  Burr.  1345,  is  to  that 
effect.  This  principle  is  supported  by  good  reason.  He  who  ma- 
liciously procures  a  damage  to  another  by  violation  of  his  right 
ought  to  be  made  to  indemnify ;  and  that  whether  he  procures  an 
actionable  wrong  or  a  breach  of  contract.  He  who  procures  the 
non-delivery  of  goods  according  to  contract  may  inflict  an  injury, 
the  same  as  he  who  procures  the  abstraction  of  goods  after  deliv- 
ery; and  both  ought  on  the  same  ground  to  be  made  responsible. 
The  remedy  on  the  contract  may  be  inadequate,  as  where  the  meas- 


1 1 70  LUMLEV   i:    GYE. 

lire  of  damages  is  restricted ;  or  in  the  case  of  non-payment  of  a 
debt  where  the  damage  may  be  bankruptcy  to  the  creditor  who  is 
disappointed,  but  the  measure  of  damages  against  the  debtor  is 
interest  only ;  or,  in  the  case  of  the  non-deHvery  of  the  goods,  the 
disappointment  may  lead  to  a  heavy  forfeiture  under  a  contract  to 
complete  a  work  within  a  time,  but  the  measure  of  damages  against 
the  vendor  of  the  goods  for  non-delivery  may  be  only  the  difference 
between  the  contract  price  and  the  market  value  of  the  goods  in 
question  at  the  time  of  the  breach.  In  such  cases,  he  who  procures 
the  damage  maliciously  might  justly  be  made  responsible  beyond  the 
liability  of  the  contractor. 

With  respect  to  the  objection  that  the  contracting  party  had 
not  begun  the  performance  of  the  contract,  I  do  not  think  it  a  tenable 
ground  of  defence.  The  procurement  of  the  breach  of  the  contract 
may  be  equally  injurious,  whether  the  service  has  begun  or  not,  and 
in  my  judgment  ought  to  be  equally  actionable,  as  the  relation  of 
employer  and  employed  is  constituted  by  the  contract  alone,  and  no 
act  of  service  is  necessary  thereto. 

The  result  is  that  there  ought  to  be,  in  my  opinion,  judgment 
for  the  plaintiff.^ 

Coleridge,  J.  In  order  to  maintain  this  action,  one  of  two 
propositions  must  be  maintained ;  either  that  an  action  will  lie 
against  any  one  by  whose  persuasions  one  party  to  a  contract  is  in- 
duced to  break  it  to  the  damage  of  the  other  party,  or  that  the  ac- 
tion, for  seducing  a  servant  from  the  master  or  persuading  one  who 
has  contracted  for  service  from  entering  into  the  employ,  is  of  so 
wide  application  as  to  embrace  the  case  of  one  in  the  position  and 
profession  of  Johanna  Wagner.  After  much  consideration  and  in- 
quiry I  am  of  opinion  that  neither  of  these  propositions  is  true  and 
they  are  both  of  them  so  important,  and,  if  established  by  judicial 
decision,  will  lead  to  consequences  so  general,  that,  though  I  regret 
the  necessity,  I  must  not  abstain  from  entering  into  remarks  of 
some  length  in  support  of  my  view  of  the  law. 

It  may  simplify  what  I  have  to  say,  if  I  first  state  what  are  the 
conclusions  which  I  seek  to  establish.  They  are  these :  that  in  re- 
spect of  breach  of  contract  the  general  rule  of  our  law  is  to  confine 
its  remedies  by  action  to  the  contracting  parties,  and  to  damages 
directly  and  proximately  consequential  on  the  act  of  him  who  is 
sued ;  that,  as  between  master  and  servant,  there  is  an  admitted 
exception ;  that  this  exception  dates  from  the  Statute  of  Laborers, 
23  Edw.  3,  and  both  on  principle  and  according  to  authority  is  lim- 
ited by  it.  If  I  am  right  in  these  positions,  the  conclusion  will  be 
for  the  defendant,  because  enough  appears  on  this  record  to  show. 


'  The  learned  judge  there  holds  that  it  is  clear  law  that  one  who  "wrong- 
fully and  maliciously,  or.  which  is  the  same  thing,  with  notice"  interrupts  the 
relation  of  master  and  servant  by  procuring  the  servant  to  leave  the  master's 
service  or  by  employing  him  after  he  has  left  commits  a  legal  wrong  against 
the  master,  and  that  the  relation  of  master  and  servant  exists  as  soon  as 
there  is  a  binding  contract  of  hiring  and  service  and  it  is  unnecessary  that 
the  servant  has  actually  entered  upon  the  service. 


LUMLEY    V.    GVE.  II/I 

as  to  the  first,  that  he,  and,  as  to  the  second,  that  Johanna  \\'agner, 
is  not  within  the  hmits  so  drawn. 

First,  then,  that  the  remedy  for  breach  of  contract  is  by  the 
general  rtile  of  our  law  confined  to  the  contracting  parties.  I  need 
not  argue  that,  if  there  be  any  remedy  by  action  against  a  stranger, 
it  must  be  by  action  on  the  case.  Now,  to  found  this,  there  must  be 
both  injury  in  the  strict  sense  of  the  word  (that  is  a  wrong  done), 
and  loss  resulting  from  that  injury:  the  injury  or  wrong  done  must 
be  the  act  of  the  defendant ;  and  the  loss  must  be  a  direct  and  natu- 
ral, not  a  remote  and  indirect,  consequence  of  the  defendant's  act. 
Unless  there  be  a  loss  thus  directly  and  proximately  connected  with 
the  act,  the  mere  intention,  or  even  the  endeavor,  to  produce  it  will 
not  found  the  action.  The  existence  of  the  intention,  that  is  the 
malice,  will  in  some  cases  be  an  essential  ingredient  in  order  to  con- 
stitute the  wrongfulness  or  injurious  nature  of  the  act;  but  it  will 
neither  supply  the  want  of  the  act  itself,  or  its  hurtful  consequence : 
however  complete  the  injuria,  and  whether  with  malice  or  without, 
if  the  act  be  after  all  sine  damno  no  action  on  the  case  will  lie.  If 
a  contract  has  been  made  between  A  and  B  that  the  latter  should 
go  supercargo  for  the  former  on  a  voyage  to  China,  and  C,  however 
maliciously,  persuades  B  to  break  his  contract,  but  in  vain,  no  one, 
I  suppose,  would  contend  that  any  action  lay  against  C.  On  the 
other  hand,  suppose  a  contract  of  the  same  kind  made  between  the 
same  parties  to  go  to  Sierra  Leone,  and  C  urgently  and  bona  fide 
advises  B  to  abandon  his  contract,  which  on  consideration  B  does, 
whereby  loss  results  to  A ;  I  think  no  one  will  be  found  bold  enough 
to  maintain  that  no  action  would  lie  against  C.^  In  the  first  case 
no  loss  has  resulted ;  the  malice  has  been  ineffectual ;  in  the  second, 
though  a  loss  has  resulted  from  the  act,  the  act  was  not  C's,  but  en- 
tirely and  exclusively  B's  own.*  If  so,  let  malice  be  added,  and  let 
C  have  persuaded,  not  bona  fide  but  mala  fide  and  maliciously,  still, 
all  other  circumstances  remaining  the  same,  the  same  reason  ap- 
plies ;  for  it  is  malitia  sine  damno,  if  the  hurtful  act  is  entirely  and 
exclusively  B's,  which  last  circumstance  cannot  be  aft'ected  by  the 
presence  or  absence  of  malice  in  C.  Thus  far  I  do  not  apprehend 
much  difiference  of  opinion  ;  there  would  be  such  a  manifest  absurd- 
ity in  attempting  to  trace  up  the  act  of  a  free  agent  breaking  a  con- 
tract to  all  the  advisers  who  may  have  influenced  his  mind,  more  or 
less  honestly,  more  or  less  powerfully,  and  to  make  them  responsible 
civilly  for  the  consequences  of  what  after  all  is  his  own  act,  and  for 
the  whole  of  the  hurtful  consequences  of  which  the  law  makes  him 
directly  and  fully  responsible,  that  I  believe  it  will  never  be  con- 
tended for  seriously.    But  it  will  be  said  that  this  declaration  charges 

=  In  Bowen  v.  Hall,  L.  R.  6  Q.  B.  D.  333  (1881),  Brett,  L.  J.  says,  p.  338, 
"Merely  to  persuade  a  person  to  break  his  contract,  may  not  be  unlawful  in 
fact  or  law  as  in  the  second  case  put  by  Coleridge,  J.  But  if  the  persuasion 
be  used  for  the  indirect  purpose  of  injuring  the  plaintiff  or  benefitting  the  de- 
fendant at  the  expense  of  the  plaintiff,  it  is  a  malicious  act  which  is  in  law 
and  fact  a  wrong  act,  and  therefore  a  wrongful  act,  and  therefore  an  action- 
able act  if  injury  ensues  from  it." 

*  See  Brett,  L.  J.,  in  Bowen  v.  Hall,  supra.  Note  3,  at  pp.  338-339. 


1 172  LUMLEY    V.    GYE. 

more  than  is  stated  in  the  case  last  supposed,  because  it  alleges,  not 
merely  a  persuasion  or  enticement,  but  a  procuring.  In  IVinsmore 
V.  Greenbank,  Willes,  577,  the  same  word  was  used  in  the  first  count 
of  the  declaration,  which  alone  is  material  to  the  present  case ;  and 
the  Chief  Justice  who  relied  on  it,  and  distinguished  it  from  entic- 
ing, defined  it  to  mean  "persuaded  with  effect ;"  and  he  held  that  the 
husband  might  sue  a  stranger  for  persuading  with  effect  his  wife  to 
do  a  wrongful  act  directly  hurtful  to  himself.  Persuading  with 
effect,  or  effectually  or  successfully  persuading,  may  no  doubt 
sometimes  be  actionable — as  in  trespass — even  where  it  is  used  to- 
wards a  free  agent ;  the  maxims,  qui  facit  per  aliiim  facit  per  se  and 
respondeat  superior,  are  unquestionable ;  but,  where  they  apply,  the 
wrongful  act  done  is  properly  charged  to  be  the  act  of  him  who  has 
procured  it  to  be  done.  He  is  sued  as  a  principal  trespasser,  and 
the  damage,  if  proved,  flows  directly  and  immediately  from  his  act, 
though  it  was  the  hand  of  another,  and  he  a  free  agent,  that  was 
employed.  But  when  you  apply  the  term  of  effectual  persuasion  to 
the  breach  of  a  contract  it  has  obviously  a  different  meaning;  the 
persuader  has  not  broken  and  could  not  break  the  contract,  for  he 
had  never  entered  into  any ;  he  cannot  be  sued  upon  the  contract ; 
and  yet  it  is  the  breach  of  contract  only  that  is  the  cause  of  dam- 
age. Neither  can  it  be  said  in  breaking  the  contract  the  contractor 
is  the  agent  of  him  who  procures  him  to  do  so ;  it  is  still  his  own  act ; 
he  is  the  principal  in  so  doing,  and  is  the  only  principal.  This  an- 
swer may  seem  technical ;  but  it  really  goes  to  the  root  of  the  mat- 
ter. It  shows  that  the  procurer  has  not  done  the  hurtful  act ;  what 
he  has  done  is  too  remote  from  the  damage  to  make  him  answerable 
for  it.*^  Now  we  find  a  plentiful  supply  both  of  text  and  de- 
cision in  the  case  of  seduction  of  servants :  and  what  inference  does 
this  lead  to,  contrasted  with  the  silence  of  the  books  and  the  ab- 
sence of  decisions  on  the  case  of  breach  of  ordinary  contracts  ?  Let 
this,  too,  be  considered:  that,  if  by  the  common  law  it  was  action- 
able effectually  to  persuade  another  to  break  his  contract  to  the 
damage  of  the  contractor,  it  would  S€*^m  on  principle  to  be  equally 

'"The  case  itself  of  IVinsmore  v.  Greenbank,  Willes,  577,  seems  to  me  to 
have  little  or  no  bearing  on  the  present:  a  wife  is  not,  as  regards  her  hus- 
band, a  free  agent  or  separate  person;  if  to  be  considered  so  for  the  present 
purpose,  she  is  rather  in  the  character  of  a  servant,  with  this  important  pecu- 
liarity, that,  if  she  be  induced  to  withdraw  from  his  society  and  cohabit  with 
another  or  do  him  any  wrong,  no  action  is  maintainable  by  him  against  her. 
In  the  case  of  criminal  conversation,  trespass  lies  against  the  adulterer  as  for 
an  assault  upon  her,  however  she  may  in  fact  have  been  a  willing  party  to  all 
the  defendant  had  done.  No  doubt,  therefore,  effectual  persuasion  to  the 
wife  to  withdraw  and  conceal  herself  from  her  husband  is  in  the  eye  of  the 
law  an  actual  withdrawing  and  concealing  her;  and  so,  in  other  counts  of  the 
declaration,  was  it  charged  in  this  very  case  of  JVins7nore  v.  Greenbank.  A 
case  explainable  and  explained  on  the  same  principle  is  that  of  ravishment 
of  a  ward.  The  writ  for  this  lay  against  one  who  procured  a  man's  ward  to 
depart  from  him;  and,  where  this  was  urged  in  a  case  hereafter  to  be  cited 
(Mich.  11  H.  4,  fol.  23  A.  pi.  46.)  Judge  Hankford  (William  Hankford,  Jus- 
tice of  the  Common  Pleas  in  1368,  afterward  in  1414  (1  H.  5), Chief  Justice 
of  England)  gives  the  answer:  the  reason  is,  he  says,  because  the  ward  is  a 
chattel,  and  vests  in  him  who  has  the  right." 


J 


LUMLEV   Z'.    GYE, 


1 173 


SO  to  uphold  him,  after  the  breach,  in  continuing  it.*  The  truet 
ground  on  which  this  action  was  maintainable,  if  at  all,  was  the 
Statute  of  Laborers,"  to  which  no  reference  was  made.  But  I  men- 
tion this  case  now  as  showing  how  far  courts  of  justice  may  be  led 
if  they  allow  themselves,  in  the  pursuit  of  perfectly  complete  reme- 
dies for  all  wrongful  acts,  to  transgress  the  bounds  which  our  law, 
in  a  wise  consciousness  as  I  conceive  of  its  limited  powers,  has  im- 
posed on  itself,  of  redressing  only  the  proximate  and  direct  conse- 
quences of  wrongful  acts.  To  draw  a  line  between  advice,  persua- 
sion, enticement  and  procurement  is  practically  impossible  in  a  court 
of  justice;  who  shall  say  how  much  of  a  free  agent's  resolution 
flows  from  the  interference  of  other  minds,  or  the  independent  reso- 
lution of  his  own  ?  This  is  a  matter  for  the  casuist  rather  than  the 
jurist;  still  less  is  it  for  the  juryman.  Again,  why  draw  the  line 
between  bad  and  good  faith?  If  advice  given  mala  Ude,  and  loss 
sustained,  entitles  me  to  damages,  why,  though  the  advice  be  given 
honestly,  but  under  wrong  information,  with  a  loss  sustained,  am  I 
not  entitled  to  them?  According  to  all  legal  analogies,  the  bona 
fides  of  him  who,  by  a  conscious  wilful  act,  directly  injures  me,  will 
not  relieve  him  from  the  obligation  to  compensate  me  in  damages 
for  my  loss.  Again,  where  several  persons  happen  to  persuade  to 
the  same  effect,  and  in  the  result  the  party  persuaded  acts  upon  the 
advice,  how  is  it  to  be  determined  against  whom  the  action  may  be 
brought,  whether  they  are  to  be  sued  jointly  or  severally,  in  what 
proportion  damages  are  to  be  recovered  ?  Again,  if,  instead  of  lim- 
iting our  recourse  to  the  agent,  actual  or  constructive,  we  will  go 
back  to  the  person  who  immediately  persuades  or  procures  him  one 
step,  why  are  we  to  stop  there?  The  first  mover,  and  the  malicious 
mover  too,  may  be  removed  several  steps  backward  from  the  party 
actually  induced  to  break  the  contract :  why  are  we  not  to  trace  him 
out?  Morally  he  may  be  the  most  guilty.  I  adopt  the  arguments 
of  Lord  Abinger  and  my  brother  Alderson  in  the  case  of'  Winter- 


'  "Now  upon  this  the  twQ  conflicting  cases  of  Adams  v.  Bafeald,  1  Leon, 
(part  1)  240,  and  Blake  v.  Lanyon,  6  T.  R.  221,  are  worth  considering.  In 
the  first,  two  Judges  against  one  decided  that  an  action  does  not  He  for  re- 
taining the  servant  of  another,  unless  the  defendant  has  first  procured  the 
servant  to  leave  his  master;  in  the  second,  this  was  overruled;  and,  although 
it  was  taken  as  a  fact  that  the  defendant  had  hired  the  servant  in  ignorance 
and,  as  soon  as  he  knew  that  he  had  left  his  former  master  with  work  unfin- 
ished, requested  him  to  return,  which  we  must  understand  to  have  been  a 
real,  earnest  request,  and  only  continued  him  after  his  refusal,  which  we 
must  take  to  have  been  his  independent  refusal,  it  was  held  that  the  action 
lay:  and  this  reason  is  given:  'The  very  act  of  giving  him  employment  is 
affording  him  the  means  of  keeping  out  of  his  former  service."  Would  the 
Judges  who  laid  this  down  have  held  it  actionable  to  give  a  stray  servant 
food  or  clothing  or  lodging  out  of  charity?  Yet  these  would  have  been 
equally  means  of  keeping  him  out  of  his  former  service. 

'"Item,  if  any  reaper,  mower,  or  other  workman  or  servant,  of  what 
estate  or  condition  that  he  be,  retained  in  any  man's  service,  do  depart  from 
the  said  service  without  reasonable  cause  or  license,  before  the  term  agreed, 
he  shall  have  pain  of  imprisonment.  .And  that  none  under  the  same  pain  pre- 
sume to  receive  or  to  retain  any  such  in  his  service." — Statute  of  Laborers,  2Z 
Edw.  Ill,  c.  11  (1349). 


11/4  SWAIX    7'.    JOHNSON. 

bottom  V.  upright,  lo  IM.  &  W.  109;  if  we  go  the  first  step,  we  can 
show  no  good  reason  for  not  going  fifty.* 

Judgment  for  plaintiff.* 


SWAIN  V.  JOHNSON. 

Supreme  Court  of  North  Carolina,  1909.     151  A'.  Car.  93. 

Brown,  J.  The  plaintiff  contends  that  he  contracted  with  the 
defendant  Noble  to  purchase  all  the  pine  and  juniper  timber  on  cer- 
tain lands  belonging  to  the  Cox  heirs,  said  Noble  being  their  attor- 
ney in  fact,  with  power  to  sell  the  land ;  that  the  defendants  West 


*The  rest  of  the  opinion  of  Coleridge,  J.,  holding  after  an  exhaustive 
and  able  review  of  the  early  cases,  that  the  law  in  relation  to  the  seduction 
of  servants  is  an  exception,  the  origin  of  which  was  known,  and  that  the  ex- 
ception did  not  reach  the  case  of  a  theatrical  performer,  is  omitted.  In  it 
he  reviews  the  early  cases  both  at  common  law  and  under  the  Statute  of  La- 
borers, pointing  out  that  the  first  allowed  recovery  in  trespass  only  for  the 
forcible  taking  of  a  servant,  while  the  Statute  of  Laborers  only  applied  to 
menial  household  servants,  agricultural  laborers  and  artificers,  to  which  the 
action  on  the  case  thereon  was  confined.  See,  also,  Macomber,  J.,  in  John- 
ston Harvester  Companv  V.  Meinhardt,  60  How.  Pr.   168  (N.  Y.   1880). 

^Accord:  Bowen  v.  Hall,  L.  R.  1881,  6  Q.  B.  D.  32,Z,  the  defendants  in- 
duced one  Pearson,  a  brickmaker  who  possessed  a  secret  process  of  making 
glazed  brick  and  who  had  contracted  to  supply  his  whole  product  to  the  plain- 
tiff, to  break  his  contract  and  supply  such  bricks  to  them;  National  Phono- 
graph Co.  V.  Edison  Co.,  L.  R.  1908,  1  Ch.  335.  holding  that  this  rule  applies 
to  contracts  of  whatsoever  nature;  but  see  Joyce,  J.,  contra,  treating  as  ab- 
surd the  idea  that  an  action  would  lie  against  a  successful  rival  who  induced 
the  plaintiff's  promised  bride  to  marry  him  instead ;  Walker  v.  Cronin,  107 
J\Iass.  555  (1871);  Moran  v.  Ditnphv,  177  Mass.  485  (1901);  Beekman  v. 
Marsters,  195  Mass.  205  (1907)  ;  Bitterman  v.  L.  &  N.  O.  R.  Co.,  207  U.  S. 
205  (1907),  defendant  bought  for  resale  non-transferable  return  railway 
tickets,  Tubular  Rivet  Co.  v.  Exeter  Boot  Co.,  159  Fed.  824  (1908)  ;  Motley, 
Green  Co.  v.  Detroit  Steel  &  Spring  Co.,  161  Fed.  389  (1908);  Tennessee 
Coal,  Iron  &  Ry.  Co.  v.  Kelly,  163  Ala.  348  (1909),  semblc:  Raver  oft  v.  Tavn- 
tor,  68  Vt.  219  (1896),  sem'ble ;  Employing  Prints'  Club  v.  Blosser  Co.,  122 
Ga.  509  (1905),  semble;  Transportation  Co.  v.  Standard  Oil  Co.,  50  W.  Va. 
611  (1902),  semble:  Thatker  Coal  Co.  v.  B^irke.  59  W.  Va.  253  (1906); 
Knickerbocker  Ice  Co.  v.  Gardiner  Dairv  Co..  107  Md.  556  (1908)  ;  Joyce 
V.  Great  Northern  R.  Co.,  100  Minn.  225  (1907).  semble:  Chipley  v.  At- 
kinson, 23  Fla.  206  (1887)  ;  Martens  v.  Reillv,  109  Wis.  464  (1901)  ;  Flaccus 
V.  Smith,  199  Pa.  St.  128  (1901)  ;  Doremus  v.  Hennessv,  176  111.  608  (1898)  ; 
Huskiev.  Griffin,  7S^.n.  MS  {\9(B). 

In  many  cases,  while  the  law  is  stated  broadly  as  in  -the  principal  case, 
the  breach  of  the  contract  was  procured  by  means  m  themselevs  unlawful,  as, 
fraud,  false  statements,  Van  Horn  v.  Van  Horn,  52  N.  J.  L.  284  (1890), 
bribery.  Angle  v.  Chicago  R.  Co.,  151  U.  S.  1  (1894).  boycotting  or  other 
intimidation,  Club  v.  Blosser,  supra,  Doremus  v.  Hennessy,  176  III.  608 
(1898),  or  by  a  combination  illegal  by  statute,  Joyce  v.  Great  Northern  R.  Co., 
supra. 

In  Tennessee  Coal  &  Iron  Co.  v.  Kelly,  Chipley  v.  Atkinson,  Raycroft  v. 
Tayntor,  Moran  v.  Dunphy,  supra,  it  is  held  that  the  unjustifiable  procure- 
ment of  the  termination  of  a  contract  terminable  at  will,  is  as  wrongful  as 
procuring  the  breach  of  a  contract  irrevocably  binding  the  party  breaking  it. 
But  no  action  lies  for  procuring  the  breach  of  a  contract  void  as  against  pub- 
lic policy,  Dr.  Miles  Medical  Co.  v.  Park  &  Sons  Co.,  220  U.  S.  373  (1911). 


SWAIN    v.    JOIIXSOX.  .  1 175 

and  Johnson  conspired  together  and  induced  Noble  to  violate  his 
contract  with  plaintiff  by  purchasing  the  lands  from  Noble  for  a 
corporation,  the  West  Lumber  Company,  in  which  West  and  John- 
son are  interested.  W'herefore,  for  such  alleged  tort,  the  plaintiff 
claims  substantial  damage. 

The  principle  of  law  upon  which  plaintiff'  found  his  right  of 
action  is  thus  stated  in  Comyn's  Digest,  Action  on  Case  A :  "In  all 
cases  where  a  man  has  a  temporal  loss  or  damage  by  the  wrong  of 
another,  he  may  have  an  action  upon  the  case  to  be  repaired  in  dam- 
ages. The  intentional  causing  such  loss  to  another,  without  justi-  j? 
fiable  cause,  and  with  the  malicious  purpose  to  inflict  it,  is  of  itself  ^ 
a  wrong/^ 

Tills  principle  has  been  applied  in  some  jurisdictions  to  the  vio- 
lation of  contracts  for  personal  servic^  and  was  so  applied  in  this 
State  in  Haskins  v.  Royster,  70  N.  C,  601,  although  by  a  divided 
court.  Yit  has  been  applied  to  the  malicious  enticing  away  of  a  work- 
man ;  to  the  loss  of  a  contract  of  marriage  by  means  of  a  false  and 
malicious  letter ;  to  maliciously  enticing  and  inducing  a  wife  to  re- 
main away  from  her  husband,  and  to  maliciously  inducing  an  opera 
singer  to  abandon  her  contract ;  but  we  find  no  case  in  any  court 
where  it  has  ever  been  applied  to  breaches  of  contracts  to  convey 
title  to  property^'  It  is  true  that  in  Jones  v.  Stanley,  76  N.  C,  356, 
it  was  applied  where  the  president  of  a  railroad  company  maliciously 
prevented  his  company  fr9m  performing  a  contract  of  carriage  of 
freight,  and  in  that  case,  Judge  Rodman  says  "the  same  reasons 
cover  every  case  where  one  person  maliciously  persuades  another 
to  break  any  contract  with  a  third  person."  ■  This  is  but  a  dictum. 
and  in  commenting  on  it  the  Supreme  Court  of  Kentucky,  in  a  well- 
considered  opinion  in  Chambers  v.  Baldzvin,  ii  L,  R.  A.,  547,  says: 
"We  have  seen  no  other  case  where  the  doctrine  is  stated  so 
broadly."  ^his  Kentucky  authority,  with  the  voluminous  notes  of 
the  annotator  and  the  numerous  cases  cited,  support  fully  4he  text 
of  Judge  Cooley,  that  "an  action  cannot,  in  general,  be  mamtained 
for  inducing  a  third  person  to  break  his  contract  with  the  plaintiff" ; 
the  consequences,  after  all,  being  only  a  broken  contract,  for  which 
the  party  to  the  contract  may  have  his  remedy  by  suing  upon  it."  J 
Cooley  on  Torts,  497.  (^To  this  rule  there  are  but  two  generally  rec- 
ognized exceptions — one  where  servants  and  apprentices  are  in- 
duced from  malicious  motives  to  leave  their  master  before  the  term 
of  service  expires,  and  the  other  arises  where  a  person  has  been 
procured,  against  his  zvill  or  contrary  to  his  purpose,  by  coercion  or 
deception  of  another,  to  break  his  contract.  Green  V.  Button,  2 
Cromp.  M.  &  R.,  707  ;  Ashley  v.  Dixon,  48  N.  Y.,  430.  This  is  based 
upon  the  idea  that  a  person  has  no  right  to  be  protected  against 
competition,  but  he  has  a  right  to  be  free  from  malicious  and  wanton 
interference  in  his  private  affairs.  \ 

If  disturbance  or  loss  comes  as  the  result  of  competition  or  the 
exercise  of  like  rights  by  others,  it  is  damnum  absque  injuria. 
Walker  v.  Cronin,  107  Mass.,  564. 

It  is  only  where  the  contract  would  have  been  fufilled  but  for 


11/6  KEEBLE    V.    HICKKKIXGILL. 

the  false  and  fraudulent  representations  of  a  third  person  that  an 
action  will  lie  against  such  third  person.  \  Benton  v.  Pratt,  2  Wend., 
385,  citing  Paslcy  v.  Freeman,  3  T.  R.  51. 

The  case  of  Ashley  v.  Dixon,  supra,  is  in  every  respect  similar 
to  the  one  under  consideration.  In  that  case  the  New  York  court 
holds:  "If  A  has  agreed  to  sell  property  to  B,  C  may  at  any  time 
before  the  title  has  passed  induce  A  to  sell  it  to  him  instead  ;  and  if 
not  guilty  of  fraud  or  misrepresentation,  he  does  not  incur  liability, 
and  this  is  so,  although  C  may  have  contracted  to  purchase  the  prop- 
erty of  B.  B  cannot  maintain  an  action  upon  the  latter  contract,  as 
he  cannot  perform  and  can  only  look  to  A  for  a  breach  of  the 
former."  This  doctrine  is  supported  by  abundant  authority.  Cooley 
on  Torts,  supra;  Otis  v.  Raymond.  3  Conn.,  413 ;  Young  v.  Covell,  8 
Johns.  (N.  Y.)  25 ;  Johnson  v.  Hitchcock,  15  J.  R.  185 :  Gallager  v. 
Briinell,  6  Cow.,  347;  Hutchins  v.  Hutchins,  7  Hill,  104. 

Tested  by  these  generally  accepted  principles,  the  plaintiff  has 
entirely  failed,  for  he  does  not  allege,  and  there  is  not  a  shred  of 
evidence  to  prove,  that  Noble  was  ready  and  willing  to  perform  his 
alleged  contract  with  plaintiff,  but  that  he  was  prevented,  against 
his  will,  from  so  doing  by  the  false  and  fraudulent  representations 
of  West  and  Johnson,  or  either  of  them. 

The  judgment  is  affirmed.' 


(b)   By  force,  threats  or  other  means  tortious  in  themselves. 

KEEBLE  V.  HICKERINGILL. 

Court  of  King's  Bench,  1809.    11  East's  Reports,  574. 

Action  upon  the  case.  Plaintiff  declares  that  he  was,  8th  No- 
vember in  the  second  year  of  the  queen,  lawfully  possessed  of  a 
close  of  land  called  iMinott's  ^leadow,  et  de  quodomz'ivario,  vocat. 

^Accord:  Boyson  v.  T^orn^_98  Cal.  578  (1893}^  defendant  induced  a  hotel 
keeper  to  require^he  plaintiffatTd^liis  wife  fo  vacate  rooms  engaged  by  them ; 
Jackson  v.  Morgan,  49  Ind.  App.  376  (1911),  defendant  induced  the  plaintiff's 
partner  to  exclude  him  and  admit  the  defendant;  Chambers  &■  Marshall  v. 
Baldivin,  91  Ky.  121  (1891 ),  a  man,  who  had  contracted  to  sell  his  tobacco  to 
the  plaintiff,  induced  to  sell  and  deliver  it  to  the  defendant;  Bourlicr  Bros.  v. 

_^Iacauley,  91  Ky.  135  (1891),  facts  very  similar  to  Liimley  v.  Gyc,  the  de- 
.. fendant  inducing  a  popular  actress  to  break  her  contract  with  the  plaintiff' 

_^6  appear  at  his  own  theatre;  McCann  v.  Wolff,  28  :\Io.  .\pp.  447  (1888)  ; 
Glencoe  Land  Co.  v.  Hudson  Bros.  Co.,  138  Mo.  439  (1897);  Ashley  v. 
Dixon,  48  N.  Y.  430  (1872),  defendant  b\'  oft'ering  a  higher  price  induced 
one,  who  had  contracted  to  sell  land  to  the  plaintiff,  to  convey  it  to  himself; 
Roscnau  v.  Empire  Circuit  Co.,  131  App.  Div.  429  (1909  N.  Y.)  ;  Sweenev 
v.  Smith,  167  Fed.  385  (Circ.  Ct.  East  Dist.  of  Pa.  1909),  defendants  pur- 
chased bonds  from  a  committee  of  bondholders,  which  had  already  to  their 
knowledge  contracted  to  sell  them  to  the  plaintiff;  aliter,  where  the  con- 
tract broken  is  unenforcible  as  not  being  in  writing  as  required  by  the 
statute  of  frauds,  and  where  the  breach  is  procured  bv  fraud,  Rice  v.  Man- 
ley.  66  X.  Y.  82  (1876)  ;  Hcywood  v.  Tillson,  75  Maine  225  (1883),  semble; 
but  see  Perkins  v.  Pendleton.  90  Maine  166  (1897),  and  see  Kline  v.  Eii- 
banks,  109  La.  241   (1902),  and  Wolf  &  Sons  v.  New  Orleans  Tailor  Made 


r- 


KEEBLE   V.    HICKERIXGILL.  1 177 

a  decoy  pond,  to  which  divers  wildfowl  used  to  resort  and  come ; 
and  the  plaintiff  had  at  his  own  costs  and  charges  prepared  and  pro- 
cured divers  decoy-ducks,  nets,  machines,  and  other  engines  for  the 
decoying  and  taking  of  the  wildfowl,  and  enjoyed  the  benefit  in 
taking  them;  the  defendant,  knowing  which,  and  intending  to  dam- 
nify the  plaintiff  in  his  vivary,  and  to  fright  and  drive  away  the 
zvildfozvl  used  to  resort  thither,  and  ji£pdz!£_JiTnr7)f  his  profit,  did, 
on  the  8th  of  November,  resort  to  the  head  of  the  said  pond  and 
vivary,  and  did  dischar^e_six_guns  laden  with  gunpowder,  and  with 
the  noise  and  stink  of  thegunpo'wcler  did  drive  awa}~the  wildfowl 
then  being  in  the  pond:  and  on  the  nth  and  12th  days  of  November 
the  defendant,  ivith  design  to  damnify  the  plaintiff,  and  fright  azvay 
the  zvildfozvl,  did  place  himself  with  a  gun  near  the  vivary,  and 
there  did  discharge  the  said  gun  several  times  that  was  then  charged 
with  the  gunpowder  against  the  said  decoy  pond,  whereby  the  wild- 
fowl were  frighted  away,  and  did  forsake  the  said  pond.  Upon  not 
guilty  pleaded,  a  verdict  was  found  for  the  olaintiff  and  £20  dam- 
ages. 

Holt,  C.  J.  I  am  of  opinion  that  this  action  doth  lie.  It  seems 
to  be  new  in  its  instance,  but  is  not  new  in  the  reason  or  principle 
of  it.  For,  1st,  this  using  or  making  a  decoy  is  lawful.  2dly,  This 
employment  of  his  ground  to  that  use  is  profitable  to  the  plaintiff, 
as  is  the  skill  and  management  of  that  employment.  As  to  the  first, 
every  man  that  hath  a  property  may  employ  it  for  his  pleasure  and 
profit,  as  for  alluring  and  procuring  decoy-ducks  to  come  to  his 
pond.  To  learn  the  trade  of  seducing  other  ducks  to  come  there  in 
order  to  be  taken  is  not  prohibited  either  by  the  law  of  the  land  or 
the  moral  law ;  but  it  is  as  lawful  to  use  art  to  seduce  them,  to  catch 
them,  and  destroy  them  for  the  use  of  mankind,  as  to  kill  and  de- 
stroy wildfowl  or  tame  cattle.  Then  when  a  man  useth  his  art  or 
his  skill  to  take  them,  to  sell  and  dispose  of  for  his  profit,  this  is  his 
trade ;  and  he  that  hinders  another  in  his  trade  or  livelihood  is  liable 
to  an  action  for  so  hindering  him.  Why  otherwise  are  scandalous 
words  spoken  of  a  man  in  his  profession  actionable,  when  without 
his  profession  they  are  not  so  ?  Though  they  do  not  effect  any  dam- 
age, yet  are  they  mischievous  in  themselves ;  and  therefore  in  there 
own  nature  productive  of  damage ;  and  therefore  an  action  lies 
against  him.  Such  are  all  words  that  are  spoken  of  a  man  to  dis- 
parage him  in  his  trade,  that  may  bring  damage  to  him ;  though 
they  do  not  charge  him  with  any  crime  that  may  make  him  ob- 
noxious to  punishment ;  to  say  a  merchant  is  broken,  or  that  he  is 
failing,  or  is  not  able  to  pay  his  debts,  i  Roll.  60,  i  ;  all  the  cases 
there  put.  How  much  more,  when  the  defendant  doth  an  actual 
and  real  damage  to  another  when  he  is  in  the  very  act  of  receiving 


Pants  Co.,  113  La.  388  (1904),  where  the  defendant  engaged  a  salesman  who 
had  left  the  plaintiff's  employment  in  breach  of  a  contract  with  him.  The 
defendant,  when  notified  of  this  fact,  otYered  to  release  the  salesman  from 
their  contract,  who  refused  to  accept  sucli  release  and  said  he  would  never 
return  to  the  plaintiff's  service.  It  was  held  that  no  action  lay  against  the 
defendant  for  refusing  to  discharge  the  salesman. 


1178  KEEBLE    Z'.    IIICKERINGILL. 

profit  by  liis  employment.  Now,  there  are  two  sorts  of  acts  for  do- 
ing damage  to  a  man's  employment,  for  which  an  action  lies ;  the 
one  is  in  respect  of  a  man's  privilege ;  the  other  is  in  respect  of  his 
property.  In  that  of  a  man's  franchise  or  privilege  whereby  he 
hath  a  fair,  market,  or  ferry,  if  another  shall  use  the  like  liberty, 
though  out  of  his  limits,  he  shall  be  liable  to  an  action ;  though  by 
grant  from  the  king.  But  therein  is  the  difference  to  be  taken  be- 
tween a  liberty  in  which  the  public  hath  a  benefit,  and  that  wherein 
the  public  is  not  concerned.  22  H.  6.  14.  15.  The  other  is  where  a 
jMojejit  or  maliciQus_.act.  is  done  to  a  man's  occupation,  profession,  or 
way^fgetting_a  livelihood ;  there  an  action  lies  in  all  cases.  But  if  a 
fuan^doth  him  damage  by  using  the  same  employment ;  as  if  Mr. 
Hickeringill  had  set  up  another  decoy  on  his  own  ground  near  the 
plaintiff's,  and  that  had  spoiled  the  custom  of  the  plaintiff,  no  action 
would  lie  because  he  had  as  much  liberty  to  make  and  use  a  decoy 
as  the  plaintiff.^  This  is  like  the  case  of  ii  H.  4.  47.  One  school- 
master sets  up  a  new  school  to  the  damage  of  an  ancient  school, 
and  thereby  the  scholars  are  allured  from  the  old  school  to  come  to 
his  new.  (The  action  there  was  held  not  to  lie.)^  But  suppose 
Mr.  Hickeringill  should  lie  in  the  way  with  his  guns,  and  fright  the 
boys  from  going  to  school,  and  their  parents  could  not  let  them  go 
thither ;  sure  that  schoolmaster  might  have  an  action  for  the  loss 
of  his  scholars.  29  E.  3.  18.^  A  man  hath  a  market,  to  which  he 
hath  toll  for  horses  sold :  a  man  is  bringing  his  horse  to  market  to 
sell :  a  stranger  hinders  and  obstructs  him  from  going  thither  to  the 
market :  an  action  lies  because  it  imports  damage.  Action  upon  the 
case  lies  against  one  that  shall  by  threats  fright  away  his  tenants  at 
will.  9  H.  7.  8.  21  H.  6.  31.  9  H.  7.  7.  14  Ed.  4.  7.  Vide  Rastal.  662. 

2  Cro.  423.  Trespass  was  brought  for  beating  his  servant,  whereby 
he  was  hindered  from  taking  his  toll ;  the  obstruction  is  a  damage, 
though  not  the  loss  of  his  service.* 

*  So  a  man  may  attract  game,  even  from  his  neighbor's  lands,  by  plac- 
ing corn  and  other  food  on  his  land,  Ibottson  v.  Peat,  3  H.  &  C.  644  (1865). 

=  See  Holmes.  J.,  in  Vegelahn  v.  Guntner,  167  Mass.  92  (1896).  "It 
has  been  the  law  for  centuries  that  a  man  may  set  up  a  business,  in  a  coun- 
try town  too  small  to  support  more  than  one,  although  he  expects  and  in- 
tends to  ruin  some  one  already  there  and  succeeds  in  his  intent."  "The 
reason  is  that  the  doctrine  of  free  competition  is  worth  more  to  society 
than  it  costs,  and  that  on  this  ground  the  infliction  of  the  damage  is  priv- 
ileged." 

^Accord:  Tarlefon  v.  McGawIey,  1  Peake  270  (1793),  a  declaration 
sustained  which  alleged  that  the  defendant,  a  merchant  trading  with  the 
natives  of  Cameroon,  had  fired  a  cannon  at  a  canoe  in  which  the  natives 
were  coming  to  the  vessel  of  the  plaintiff,  a  rival  trader,  for  the  purpose 
of  trading,  killing  one  of  them  and  deterring  them  from  trading  with  the 
plaintiff:  so  in  Standard  Oil  Co.  v.  Doyle,  118  Ky.  662  (1904),  threats,  to  put 
the  plaintiff's  customers  out  of  business  if  they  continued  to  deal  with  him, 
held  actionable. 

*  Accord:    Carrington  V.  Taylor,  11   East  571    (1809);  Ibottson  v.  Peat, 

3  H.  &  C.  644  (1865).  compare  Lanprev  v.  Danz,  86  Minn.  317  (1902). 
and  Whittaker  v.  Stangvick.  100  Minn.  386  (1907),  and  see  Prince  de  Wag- 
ravi  V.  Morals,  Cour  de  Paris.  (1871),  Dalloz  73,  2,  185,  defendant  jealous 
of  the  success  of  the  plaintiff's  efforts  to  attract  game  by  planting  cer- 
tain crops,  instructed   his  servants   to  make   so   much  noise  as   to   frighten 


JERSEY    CITY    PRIXTING    CO.    Z'.    CASSIDY.  1 179 

GARRET  V.  TAYLOR. 
Court  of  King's  Bench,  1620.     Crake  James  Reports,  567. 

Action  on  the  Case. 

Whereas,  he  was  a  free  mason,  and  used  to  sell  stones,  and  to 
make  stone-buildings,  and  was  possessed  of  a  lease  for  divers  years 
to  come  of  a  stone-pit  in  Hedington,  in  the  county  of  Oxford,  and 
digged  divers  stones  there,  as  well  to  sell  as  to  build  withal ;  that  the 
defendant,  to  discredit  and  to  deprive  him  of  the  commodity  of  the 
said  mine,  imposed  so  many  and  so  great  threats  upon  his  workmen, 
and  all  comers  disturbed,  threatening  to  mayhem  and  vex  them  with 
suits  if  they  bought  any  stones ;  whereupon  they  all  desisted  from 
buying,  and  the  other  from  working,  etc. 

After  judgment  by  nihil  dicit  for  the  plaintiff,  and  damages 
found  by  inquisition  to  fifteen  pounds,  it  was  moved  in  arrest  of 
judgment,  that  this  action  lay  not;  for  nothing  is  alleged  but  only 
words,  and  no  act  nor  insult ;  and  causeless  suits  on  fear  are  no 
cause  of  action. 

Sed  non  allocatur:  for  the  threatening  to  mayhem,  and  suits, 
whereby  they  durst  not  work  or  buy,  is  a  great  damage  to  the  plain- 
tiff, and  his  losing  the  benefit  of  his  quarries  a  good  cause  of  action ; 
and  although  it  be  not  shown  how  he  was  possessed  for  years,  by 
what  title,  &c.,  yet  that  being  but  a  conveyance  to  this  action,  was 
held  to  be  well  enough.    And  adjudged  for  the  plaintiff.^ 


(c)  By  interference  with  the  freedom  of  opportunity  to  contract 
or  to  obtain  labor  or  employment. 


(The  right  to  "the  freedom  of  the  market.") 

THE  JERSEY  CITY  PRINTTNG  CO.  v.  CASSIDY. 

Court  of   Chancery,  New  Jersey,   1902.     63  A''.  7.   Equity,  759. 

On  motion,  on  order  to  show  cause,  for  an  injunction  to  re- 
strain defendants,  former  employees  of  the  complainant,  and  now  on 
strike,  from  unlawful  interfprence  with  the  mmplnin.nnt'c;  biminp<;t;, 


away  the  game  and  spoil  the  sport  of  the  plaintiff  and  his  shooting  partv, 
Ames,  18  Harvard  L.  R.  p.  416. 

^Accord:  Standard  Oil  Co.  v.  Doyle.  118  Ky.  662  (1904).  defendants 
conspired  to  harass  and  annoy  the  plaintiff's  employes  while  selling  and  de- 
livering his  wares;  Pratt  Food  Co.  v.  Bird,  148  Mich.  631  (1907),  injunction 
issued  against  a  food  commissioner  of  the  state  restraining  him  from 
threatening  customers  of  the  plaintiff  with  prosecutions,  which  it  was  not 
within  his  powers  to  institute,  if  they  used  its  product  as  prepared  by  it ; 
see  also  Emack  v.  Kane,  34  Fed.  46   (1888),   injunction  issued  restraining 


il8o  JERSEY    CITY    PRINTING    CO.    V.    CASSIDY. 

the  employment  of  workmen,  &c.     Heard  on  bill,  answer  and  athda- 
vits. 

Upon  tiling  the  bill  an  order  was  made  restraining  the  defend- 
ants 

"from  in  any  manner  knowingly  and  intentionally  causing  or  attempting 
to  cause  by  threats,  offers  of  money,  payment  of  money,  offering  to  pay  or 
the  payment  of  transportation  expenses,  inducements  or  persuasions  to  any 
employee  of  the  complainant  under  contract  to  render  service  to  it  to  break 
such  contract  by  quitting  such  service ;  from  any  and  all  personal  molesta- 
tion of  persons  willing  to  be  employed  by  complainant  with  intent  to  coerce 
such  persons  to  refrain  from  entering  such  employment;  from  addressing 
persons  willing  to  be  employed  by  complainant  against  their  will  and  thereby 
causing  them  personal  annoyance  with  a  view  to  persuade  them  to  refrain 
from  such  employment;  from  loitering  or  picketing  in  the  streets  near  the 
premises  of  complainant,  Nos.  68  and  70  York  street,  and  No.  37  Mont- 
gomery street,  Jersey  City,  with  intent  to  procure  the  personal  molestation 
and  annoyance  of  persons  employed  or  willing  to  be  employed  by  com- 
plainant and  with  a  view  to  cause  persons  so  employed  to  quit  their  em- 
ployment, or  persons  willing  to  be  employed  by  complainant  to  refrain  from 
such  employment;  from  entering  the  premises  of  complainant,  Xos.  68  and  70 
York  street,  Jersey  Citj',  against  its  will  with  intent  to  interfere  with  its 
business;  from  violence,  threats  of  violence,  insults,  indecent  talk,  abusive 
epithets,  practiced  upon  any  persons  without  their  consent  with  intent  to 
coerce  them  to  refrain  from  entering  the  employment  of  complainant,  or  to 
leave  its  employment." 

Stevenson,  V.  C.  »,  The  order  does  not  interfere  with  the  right 
of  the  workmen  to  cease  his  employment  for  any  reasons  that  he 
deems  sufficient."  It  does  not  undertake  to  say  that  w'orkmen  may 
not  refuse  to  be  employed  if  certain  other  classes  of  workmen  are 
retained  in  employment.  1  It  leaves  the  workman  absolutely  free  to 
abstain  from  work — for  good  reasons,  for  bad  reasons,  for  no  rea- 
sons. Hif-  absolute  freedom  to  work,  or  not  to  work,  is  not  in  any 
w-ay  impaired.  The  restraining  order  is  based  upon  the  theory  that 
the  right  of  the  workman  to  cease  his  employment,  to  refuse  to  be 
employed,  and  to  do  that  in  conjunction  with  his  fellow-workmen, 
is  just  as  absolute  as  is  the  right  of  the  employer  to  refuse  further 
to  employ  one  rnan,  or  ten  men,  or  twenty  men,  who  have  thereto- 
fore been  in  his  employment.  From  an  examination  of  the  cases 
and  a  very  careful  consideration  of  the  subject  I  am  unable  to  dis- 
cover any  right  in  the  courts,  as  the  law  now'  stands,  to  interfere 
with  this  absolute  freedom  on  the  part  of  the  employer  to  employ 
whom  he  will,  and  to  cease  to  employ  whom  he  will ;  and  the  corres- 
ponding freedom  on  the  part  of  the  workman,  for  any  reason  or 

defendants  from  issuing  circulars  threatening  to  bring  suits  for  infringe- 
ment against  persons  dealing  in  the  plaintiff's  patented  article  the  charges 
of  infringement  not  being  made  in  good  faith  but  with  intent  to  injure  the 
plaintiff's  business,  and  St.  Johnsbury,  etc.,  R.  Co.  v.  Hunt,  55  Vt.  570 
(1882).  See  also,  Van  Horn  v.  Van  Horn,  52  N.  J.  L.  284  (1890),  and 
Sparks  V.  McCreary,  156  Ala.  382  (1908). 


JERSEY    CITY    PRIXTIXG    CO.    V.    CASSIDY.  ugl 

no  reason,  to  say  that  he  will  not  longer  be  employed ;  and  the  fur- 
ther right  of  the  workmen,  of  their  own  free  will,  to  combine  and 
meet  as  one  party,  as  a  unit,  the  employer,  who,  on_the  other  side  of 
the  transaction,  appears  as  a  unit  before  them.  ^A.ny  discussion  of 
the  motives,  purposes  or  intentions  of  the  employer  in  exercising  his 
absolute  right  to  employ  or  not  to  employ  as  he  sees  fit,  or  of  the 
free  combination  of  employees  in  exercising  the  corresponding  ab- 
solute right  to  be  employed  or  not  as  they  see  fit,  seems  to  me  to 
be  in  the  air. 

Thus,  there  is  a  wide  field  in  which  employees  may  combine  and 
exercise  the  arbitrary  right  of  "dictating"  to  their  common  em- 
ployer "how  he  shall  conduct  his  business."  The  exact  correlative 
of  this  right  of  the  employee  exists,  in  an  equal  degree,  in  the  em- 
ployer. He  may  arbitrarily  "dictate"  to  five  thousand  men  in  his 
employ  in  regard  to  matters  in  respect  of  which  their  conduct  ought, 
according  to  correct  social  and  ethical  principles,  to  be  left  entirely 
free.  But  if  the  "dictation"  is  backed  up  solely  by  the  announce- 
ment that,  if  it  is  not  submitted  to,  the  dictating  party  will  refrain 
from  employing,  or  refrain  from  being  employed,  as  the  case  may  be, 
no  legal  or  equitable  right  belonging  to  the  party  dictated  to,  which  I 
am  able  to  discern,  is  thereby  invaded. 

l_S^ome  of  the  expressions  which  I  have  used,  and  which  are  com- 
monly used,  in  relation  to  this  subject  seem  to  me  to  be  misleading. ' 
Union  workmen  who  inform  their  employer  that  they  will  strike  if 
he  refuses  to  discharge  all  non-union  workmen  in  his  employ  are 
acting  within  their  absolute  right,  and,  in  fact,  are  merely  dictating 
the  terms  upon  which  they  will  be  employed.  All  such  terms  neces- 
sarily relate  both  to  "how  the  employer  shall  conduct  his  business" 
and  Jiow  the  employees  shall  conduct  their  business. 

^  l_The  principles  which  I  have  endeavored  to  state  are  all  recog- 
nized in  the  restraining  order  in  this  case,  and  are  so  plainly  recog- 
nized that  the  intelligent  and  industrious  counsel  for  the  defendants 
is  unable  to  point  out  any  respect  wherein  the  terms  of  the  order 
should  be  modified.  The  things  which  the  restraining  order  inter- 
dicts are  things  which,  for  the  purposes  of  this  argument,  it  is  prac- 
tically conceded  the  defendants  haveiio. right  to  do. 

In  this  situation  of  the  case  it  would  seem  to  be  unnecessary  to 
further  consider  the  legal  propriety  of  the  restraining  order,  much 
less  to  take  it  up  clause  by  clause.  I  have,  however,  pointed  out 
what  conduct  on  the  part  of  the  defendants  is  excluded  from  the 
operation  of  this  order,  and  I  think  that  it  is  fair  to  all  the  parties 
to  this  suit  who  are  concerned  in  the  rnaintenance  of  the  restraining 
order  to  explain,  at  least  in  a  general  way,  what  conduct  is  included 
within  its  prohibition.  This  can  be  most  conveniently  done  by  mak- 
ing plain  the  most  important  principles  embodied  in  the  order — 
principles  which  practically  have  been  developed  by  the  courts  of 
this  country  and  England  during  the  last  five  or  ten  years. 

That  the  interest  of  an  employer,  or  an  employee,  in  a  contract 
for  services  is  property  is  conceded.  Where  defendants,  in  combina- 
tion or  individually,  undertake  to  interfere  with  and  disrupt  existing 


I  182  JERSEY    CITY    PRINTING    CO.    V.    CASSIDY. 

contract  relations  between  the  employer  and  the  employee,  it  is  plain 
that  a  property  right  is  directly  invaded.  The  effect  is  the  same 
whether  the  means  employed  to  cause  the  workman  to  break  his  con- 
tract, and  thus  injure  the  employer,  are  violence  or  threats  of  vio- 
lence against  the  employee  or  mere  molestation,  annoyance  or  per- 
suasions. In  all  these  cases,  whatever  the  means  may  be,  they  con- 
stitute the  cause  of  the  breaking  of  a  contract,  and  consequently 
they  constitute  the  natural  and  proximate  cause  of  damage.  The 
intentional  doing  of  anything  by  a  third  party  which  is  the  natural 
and  proximate  cause  of  the  disruption  of  a  contract  relation,  to  the 
injury  of  one  of  the  contracting  parties,  is  now  very  generally  recog- 
nized as  actionable,  in  the  absence  of  a  sufficient  justification,  and 
the, question,  in  every  case,  seems  to  turn  upon  justification  alone. 

Where  the  tangible  property  of  an  employer  is  seized  or  di- 
rectly injured  by  violence,  with  intent  to  interfere  with  the  carrying 
on  of  his  business,  the  case,  also,  is  free  from  embarrassment. 

In  the  case  of  Frank  v.  Her  old,  18  Dick.  Ch.  Rep.  443,  Vice 
Chancellor  Pitney  amply  discussed  the  whole  subject  of  the  unlaw- 
fulness of  molestation  and  annoyance  of  employees,  with  intent  and 
with  the  effect  to  induce  them  to  abandon  their  employment,  to  the 
injury  of  their  employer's  business. 

But  the  difficult  case  presents  itself  when  the  workmen  in  com- 
bination undertake  to  interfere  with  the  freedom  of  action  on  the 
part  of  other  workmen,  whonaturally  would  seek  employment  where 
they  fthe  workmen  in  combination)  desire  and  intend  that  no  man 
shall  be  employed  excepting  upon  their  terms. 

r  The  difficulty  is  in  perceiving  how  molestation  and  annoyance, 
not  of  the  employees. of  a  complainant,  but  of  persons  who  are 
merely  looking  for  work  and  may  become  employees  of  the  com- 
plainant, can  be  erected  into  a  legal  or  equitable  grievance  on  the 
part_of_theJcompIamant.  But  the  difficulty  is  still  further  increased 
where  the  possible  employees  make  no  complaint  to  any  court  for 
protection,  and  the  conduct  of  the  molesting  party  does  not  afford 
a  basis  which  the  ancient  common  law  recognized  as  sufficient  to 
support  an  action  of  tort  on  their  behalf,  such  as  for  an  assault  and 
battery  or  a  slander.  Abusive  language  is  not  necessarily  actionable 
at  the  common  law.  If  to  call  a  man  a  "scab"  in  the  street,  or  to 
follow  him  back  and  forth  from  his  home  to  his  place  of  employ- 
ment, was  formerly  not  actionable  on  behalf  of  the  victim  of  this 
petty  annoyance,  the  problem  is  to  understand  how  one  who  is 
merely  the  '^^if'^it3T^gj::nggjh]pj^rrij^y^--g^T  rorppl^^;  either  at  law  or 
in  equity,  there  being  no  actual  contract  for  service,  but  only  a 
potential  one,  interfered  with. 

It  is  easier,  I  think,  to  obtain  a  correct  idea  of  the  legal  and 
equitable  right  which  underlies  many  of  the  injunctions  which  have 
been  granted  in  these  strike  cases  restraining  combinations  of  work- 
men from  interfering  with  the  natural  supply  of  labor  to  an  em- 
ployer, by  means  of  molestation  and  personal  annoyance,  if  we  ex- 
clude from  consideration  the  conduct  of  the  defendants  as  a  cause  cf 
action  on  behalf  of  the  immediate  victims  of  their  molestation — i.  e , 


JERSEY    CITY    PRINTING    CO.    V.    CASSIDY,  I183 

of  the  workman  or  workmen  whom  the  combination  are  seeking  to 
deter  from  entering  into  the  employment  which  is  offered  to  them, 
and  which  they,  if  let  alone,  would  wish  to  accept.  I  say  this,  al- 
though I  firmly  believe  that  the  molested  workman,  seeking  employ- 
ment and  unreasonably  interfered  with  in  this  effort  by  a  combina- 
tion, has  an  action  for  damages  at  common  law,  and,  where  the 
molestation  is  repeated  and  persistent,  has  the  same  right  to  an  in- 
junction, in  equity,  which,  under  the  same  circumstances,  is  ac- 
corded to  his  contemplated  employer. 

The  underlying  right^lrTThisr  particular  case  under  considera- 
tion, which  seems  to  be  coming  into  general  recognition  as  the  sub- 
ject of  protection  by  courts  of  equity,  through  the  instrumentality 
of  an  injunction,  appears  to.be  the  right  to  enjoy  a_certain..free  and 
natural_condi^ion_of_the  laborlnarket,  which,  in  a  recent  case  in  the 
house^f  lords,  was  referred  to,  in  the  language  of  Lord  Ellenbor- 
ough,^FaJ^£robable  e3cpectancy.''  This  underlying  right  has  other- 
wise beelrbroad!y~deHned  or  described  as  the  right  which  every  man 
has  to  earn  his  living,  or  to  pursue  his  trade  or  business,  without  un- 
due interference,  and  might  otherwise  be  described  as  the  right  which 
every  man  has,  whether  employer  or  employee,  of  absolute  freedom 
to  employ  or  to  be  employed.  The  peculiar  element  of  this,  perhaps 
newly  recognized  right,  is  that  it  is  an  interest  which  one  man  has 
in  the  freedom  of  another.  Jn  the  case  before  this  court  the  Jersey 
City  Printing  Company  claims  the  right,  not  only  to  be  free  in  em- 
ploying labor,  but  also  the  right  that  labor  shall  be  free  to  be  em- 
ployed by  it,  the  Jersey  City  Printing  Company. 

A  large  part  of  what  is  most  valuable  in  modern  life  seems  to 
depend  more  or  less  directly  upon  "probable  expectancies."  When 
they  fail,  civilization,  as  at  present  organized,  may  go  down.  As 
social  and  industrial  life  develops  and  grows  more  complex  these 
"probable  expectancies"  are  bound  to  increase.  It  would  seem  to  be 
inevitable  that  courts  of  law,  as  our  system  of  jurisprudence  is 
evolved  to  meet  the  growing  wants  of  an  increasingly  complex  social 
order,  will  discover,  define  and  protect  from  undue  interference 
more  of  these  "probable  expectancies." 

in  undertaking  to  ascertain  and  define  the  rights  and  remedies 
of  employers  and  employees,  in  respect  of  their  "probable  expec- 
tancies" in  relation  to  the  labor  market,  it  is  well  not  to  lose  sight 
altogether  of  any  other  analogous  rights  and  remedies  which  are 
based  upon  similiar  "probable  expectancies."  It  will  probably  be 
found  in  the  end,  I  think,  that  the  natural  expectancy  of  employers 
in  relation  to  the  labor  market  and  the  natural  expectancy  of  mer- 
chants in  respect  to  the  merchandise  market,  must  be  recognized  to 
the  same  extent  by  courts  of  law  and  courts  of  equity  and  protected 
by  substantially  the  same  rules. 

It  is  freedom  in  the  market,  freedom  in  the  purchase  and  salX 
of  all  things,  including  both  goods  and  labor,  that  our  modern  law] 
is  endeavoring  to  insure  to  every  dealer  on  either  side  of  the  marked 
The  valuable  thing  to  merchant  and  to  customer,  to  employer  and  ] 
to  employee,  manifestly  is  freedom  on  both  sides  of  the  market./ 


1 184  JERSEY    CITY    PRIXTIXG    CO.    V.    CASSIDY, 

The  merchant,  with  his  fortune  invested  in  goods  and  with  perfect 
freedom  to  sell,  might  be  ruined  if  his  customers  were  deprived  of 
their  freedom  to  buy ;  the  purchaser,  a  householder,  seeking  supplies 
for  his  family,  with  money  in  his  pocket  and  free  to  buy,  might  find 
his  liberty  of  no  value  and  might  suffer  from  lack  of  food  and  cloth- 
ing if  the  shopmen  who  deal  in  these  articles  were  so  terrorized  by 
a  powerful  combination  as  to  be  coerced  into  refusing  to  sell  either 
food  or  clothing  to  him. 

It  is,  however,  the  right  of  the  employer  and  employee  to  a  free 
labor  market  that  is  the  particular  thing  under  consideration  in  this 
case, 

A  man  establishes  a  large  factory  where  working  people  reside, 
taking  the  risk  of  his  being  able  to  conduct  his  industry  and  offer 
these  working  people  employment  which  they  will  be  willing  to  ac- 
cept. He  takes  the  risk  of  destructive  competition  and  a  large  num- 
ber of  other  risks,  out  of  which,  at  any  time,  may  come  his  financial 
ruin  and  the  suspension  of  his  manufacturing  works.  But  our  law, 
in  its  recent  development,  undertakes  to  insure  him,  not  only  that 
he  may  employ  whom  he  pleases,  but  that  all  who  wish  to  be  em 
ployed  by  him  may  enter  into  and  remain  in  such  employment  freely, 
without  threats  of  harm,  without  unreasonable  molestation  and 
annoyance  from  the  words,  actions  or  other  conduct  of  any  other 
persons  acting  in  combination.  What  is  the  measure  or  test  by 
which  the  conduct  of  a  combination  or  persons  must  be  judged  in 
order  to  determine  whether  or  not  it  is  an  unlawful  interference 
with  freedom  of  employment  in  the  labor  market,  and  as  such,  in- 
jurious to  an  employer  of  labor  in  respect  of  his  "probable  expec- 
tancies," has  not  as  yet  been  clearly  defined.  Perhaps  no  better 
definition  could  be  suggested  than  that  which  may  be  framed  by  con- 
veniently using  that  important  legal  fictitious  person  who  has  taken 
such  a  large  part  in  the  development  of  our  law  during  the  last  fifty 
years — the  reasonably  prudent,  reasonably  courageous  and  not  un- 
reasonably sensitive  man.  Precisely  this  same  standard  is  employed 
throughout  the  law  of  nuisance,  in  determining  what  degree  of  an- 
noyance on  the  part  of  one's  neighbor  one  must  submit  to,  and  what 
degree  of  such  annoyance  is  excessive  and  the  subject  of  an  action 
for  damages  or  a  suit  for  an  injunction. 

A  man  may  not  be  liable  to  an  action  for  slander  for  calling  a 
workman  a  *'scab"  in  the  street,  but  if  half  a  hundred  men  combine 
to  have  this  workmen  denounced  as  a  "scab"  in  the  street,  or  fol- 
lowed in  the  streets  to  and  from  his  home,  so  as  to  attract  public 
attention  to  him  and  place  him  in  an  annoyingly  conspicuous  posi- 
tion, such  conduct,  the  result  of  such  combination,  is  held  to  be  an 
invasion  of  the  "probable  expectancy"  of  his  employer  or  con- 
templated employer,  an  invasion  of  this  employer's  right  to  have 
labor  tloiv  freely  to  him.  Without  any  regard  to  the  rights  and 
remedies  which  the  molested  workman  may  have,  the  injunction 
goes  at  the  suit  of  the  employer  to  protect  his  "probable  expectancy" 
— to  secure  freedom  in  the  labor  market  to  employ  and  to  be  em- 


I 


JERSEY    CITY    rRIXTIXG    CO.    V.    CASSIDY.  II05 

ployed,  upon  which  tlie  continuance  of  his  entire  industry  may  de- 
pend. 

I  think  it  is  safe  to  say  that  all  through  this  development  of 
strike  law,  during  the  last  decade,  no  principle  becomes  established 
which  does  not  operate  equally  upon  both  employer  and  employee. 
The  rights  of  both  classes  are  absolutely  equal  in  respect  of  all  these 
"probable  expectancies."  An  operator  upon  printing  machines  has 
the  right  to  ofifer  his  labor  freely  to  any  of  the  printing  shops  in  Jer- 
sey City.  These  shops  may  all  combine  to  refuse  to  employ  him  on 
account  of  his  race,  or  membership  in  a  labor  luiion,  or  for  any  other 
reason,  or  for  no  reason,  precisely  as  twenty  employees  in  one  print- 
ing shop  may  combine  and  arbitrarily  refuse  to  be  further  employee! 
unless  the  business  is  conducted  in  accordance  with  their  views.  But 
in  the  case  of  the  operative  seeking  employment,  he  has  a  right  to 
have  the  action  of  the  masters  of  the  printing  shops,  in  reference  to 
employing  him,  left  absolutely  free.  If,  after  obtaining,  or  seeking 
to  obtain,  employment  in  a  shop,  the  master  of  that  shop  should  be 
subjected  to  annoyances  and  molestation,  instigated  by  the  proprie- 
tors of  other  printing  shops,  who  combine  to  compel,  by  such  moles- 
tation and  annoyance,  this  one  master  printer,  against  his  will  and 
wish,  to  exclude  the  operative  from  employment,  this  operative,  in 
my  judgment,  would  have  a  right  to  an  action  at  law  for  damages, 
and  would  have  a  right  to  an  injunction  if  his  case  presented  the 
other  ordinary  conditions  upon  which  injunctions  issueV  '  But  the 
common-law  courts  have  not  had  time  to  speak  distinctly' on  this 
subject  as  yet,  and  it  is  necessary  to  be  cautious  in  dealing  with  a 
subject  in  which  both  courts  of  law  and  courts  of  equity  as  yet  are 
feeling  their  way. 

''  I  think  that  the  leading  principle  enforced  in  the  restraining 
order  in  this  case  is  not  inconsistent  with  any  authorities  which  con- 
trol this  court.  The  principle  is  that  a  combination  of  employers,! 
or  a  combination  of  employees,  the  object  of  which  is  to  interfere 
with  the  freedom  of  the  employer  to  employ,  or  of  the  employee 
to  be  employed  (in  either  of  which  cases  there  is  an  interference 
with  the  enjoyment  of  "probable  expectancy,"  which  the  law  recog- 
nizes as  something  in  the  nature  of  property),  by  means  of  suchj 
molestation  or  personal  annoyance  as  would  be  liable  to  coerce  thej 
person  upon  whom  it  was  inflicted,  assuming  that  he  is  reasonably 
courageous  and  not  unreasonably  sensitive,  to  refrain  from  employ- 
ing or  being  employed,  is  illegal  and  founds  an  action  for  damages 
on  the  part  of  any  person  knowingly  injured  in  respect  of  his  "prob- 
able expectancy"  by  such  interference,  and  also,  when  the  other 
necessary  conditions  exist,  affords  the  basis  of  an  injunction  from  a 
court  of  equity. 

The  doctrine  which  supports  that  portion  of  the  restraining 
order  in  this  case  which  undertakes  to  interdict  the  defendants  from 
molesting  applicants  for  employment  as  an  invasion  of  a  right  of  the 
complainant,  is  applicable  to  a  situation  presenting  either  an  em- 
ployer or  an  employee  as  complainant,  and  containing  the  following 
elements ; 


Il86  JERSEY    CITY    PRINTING    CO.    V.    CASSIDY. 

First.  Some  person  or  persons  desiring  to  exercise  the  right 
of  employing  labor,  or  the  right  of  being  employed  to  labor. 

Second.  A  combination  of  persons  to  interfere  with  that  right, 
by  molestation  or  annoyance,  of  the  employers  who  would  employ, 
or  of  the  employees  who  would  be  employed,  in  the  absence  of  such 
molestation. 

How  far  the  element  of  combination  of  a  number  of  persons 
will  finally  be  found  necessary,  in  order  to  make  out  the  invasion  of 
a  legal  or  equitable  right  in  this  class  of  cases,  need  not  be  discussed. 
We  are  dealing  with  cases  where  powerful  combinations  of  large 
numbers,  in  fact,  exist. 

Third.  Such  a  degree  of  molestation  as  might  constrain  a  per- 
son having  reasonable  fortitude,  and  not  being  unreasonably  sensi- 
tive, to  abandon  his  intention  to  employ  or  to  be  employed,  in  order 
to  escape  such  molestation. 

Fourth.  As  the  result  of  the  foregoing  conditions,  an  actual 
pecuniary  loss  to  the  complaining  party,  by  the  interference  with  his 
enjoyment  of  his  "probable  expectancies"  in  respect  of  the  labor 
market. 

I  do  not  think  that  the  constraining  force  brought  to  bear  upon 
the  employer  or  employee  which  the  law  can  interdict  can  ever  in- 
clude the  power  of  public  opinion  or  even  of  class  opinion.  Every 
man,  whether  an  employer  or  an  employee,  constitutes  a  part  of  a 
great  industrial  system,  and  his  conduct  is  open  to  the  criticism  of 
the  members  of  his  own  class.  While,  therefore,  a  combination  of 
union  men  have  no  right  to  cry  *'scab"  in  the  streets  to  non-union 
employees,  or  to  follow  them  in  the  street  in  a  body  to  and  from 
their  homes,  or  do  many  other  things  in  combination,  which,  if  done 
.once  by  a  single  individual,  would  not  found  an  action  of  tort,  such 
:ombinations,  I  think,  have  left  a  fairly  wide  field  of  effort  towards 
the  creation  and  application  of  public  opinion  as  a  constraining  force 
jpon  conduct  of  any  kind  which  they  wish  to  discourage.^ 


^  While  later  cases  tend  to  recognize  a  right  to  the  probability  of  bene- 
fit from  the  purely  voluntarily,  though  probable,  favorable  actions  of  others, 
in  no  way  legally  bound  to  so  act,  and  regard  as  legally  wrongful  any 
tortious  interference  by  fraud,  misrepresentation,  force  or  threats  with 
such  person's  activities,  many  of  the  older  cases  held  that  no  such  right 
existed  and  required  that  the  plaintiff  show  a  legal  right  to  the  present 
enjoyment  of  tha*  of  which  the  defendant's  action  had  deprived  him.  Com- 
pare Hutchins  V.  Hittch'ms,  7  Flill  104  (N.  Y.  1845)  with  Lewis  v.  Corbiii, 
195  Mass.  520  (1907),  both  cases  where  the  defendant  by  false  statements 
about  the  plaintiff  induced  a  third  person  to  alter  his  will  to  the  plain- 
tiff's disadvantage,  and  Rice  v.  Manley,  66  N.  Y.  82  (1876),  where  the 
defendant  induced  a  third  person  to  break  a  contract  with  the  plaintiff,  the 
contract  being  legally  unenforceable,  not  being  in  writing  as  required  by 
the  statute  of  fraud.  The  same  tendency  may  be  noted  in  such  cases  as 
Urts  V.  New  York  Central  and  Hudson  River  R.  R.  Co.  and  Austin  x. 
Barrows,  ante,  holding  it  to  be  insufficient  for  the  plaintiff  to  show  as  proof 
of  loss  resulting  from  the  defendant's  wrong,  that  it  prevented  him  obtain- 
ing a  benefit,  which  to  a  high  degree  of  probability  would  have  accrued 
to  him. 


GOLDFIELD    CONSOL.    MINES    CO.    V.    GOLDFIELD    MINERs'    UNION.       II87 

SECTION  2 


The  Actor's  Economic  Advancement  as  a  Justification. 


1.    For  the  use  of  force,  threats  or  other  tortious  means. 


COLDFIELD  CONSOLIDATED  ^IIXES  CO.  v.  GOLDFIELD 
MINERS  UNION  NO.  220. 

Circuit  Court,  D.  Nevada,  1908.     159  Fed.  Rep.  500. 

Farrington,  D.  J.  There  is  no  law,  nor  is  it  within  the  power 
of  this  or  any  other  court,  to  make  an  order  by  which  Goldfield 
Consolidated  Mines  CompaiTycan__be__com2elk^^ 
re-einj)loyijjiy_minerj:dlaja^uit,'or  any  member  of  the  Western  Fe3^ 
eratK)n  of  Miners  ;  neither  can  any  member  of  that  organization  be 
compelled  against  his  will  to  work  for  the  company.  The  nonunion 
men  have  the  samej-jp^ht  to  work  or  not  work,  to  af^ree  upon  the^ 
terms  of  empToymentTor  to  quit  work,  as  union  men,  no  more,  no 
less.  They  have  a  perfect  right  to  take  the  vacated  jobs  if  they  can 
agree  with  the  company  upon  terms,  and  the  respondents  have  no 
legal  right  to  dictate  what  those  terms  shall  be.  They  have  the 
right  to  seek  employment,  to  come  and  go  from  their  work,^  or  to 
go  where  they  please  on  the  public  thoroughfare,-  without  fear  or 
molestation,  threats,  violence,  or  insult  of  any  kind.  They  have  a 
right  to  come  and  go  without  being  picketed,  or  compelled  to  listen 
to  argument  or  persuasion,  whether  it  be  peaceful  or  irritating.  The 
pickets  have  no  legal  right  to  insist  that  any  nonunion  man  shall 
listen  to  their  solicitations  if  he  is  unwilling  to  do  so,  it  matters  not 
how  peaceful  and  friendly  such  solicitations  may  be.^  Union  Pac. 
R.  Co.  v.  Rucf  (C.  C.)  120  Fed.  114.  And  it  necessarily  follows 
that  any  attempt  to  intimidate  a  man  in  order  to  compel  him  to  re- 

^In  Murdoch  v.  Walker,  et  al,  152  Pa.  St.  595  (1893),  strikers  were 
enjoined  from  following  workmen  employed  in  their  stead,  and  from  gath- 
ering around  their  boarding  places. 

^"It  makes  no  difference  that  the  picketing  is  done  10  or  1,000  feet 
away"  from  the  employer's  premises,  Beck  V.  Teamsters'  Protective  Union, 
118  Mich.  497  (1898)  ;  American  Steel  &  Wire  Co.  v.  Wire  Drawers'  Union, 
90  Fed.  608   (1898);  Ideal  Mfg.  Co.  v.  Ludwig,  149  Mich.   133   (1907). 

'  In  Jonas  Glass  Co.  V.  Glass  Bottle  Blowers  Assn.,  77  N.  J.  Eq.  219 
(1910),  following  the  decree  in  Jersey  City  Printing  Co.  v.  Cassidy,  ante, 
the  members  of  the  association  were  restrained  from  "addressing  persons 
willing  to  be  employed  by  complainant,  against  their  will,  and  so  causing 
them  annoyance  with  a  view  to  persuade  them  to  refrain  from  such  em- 
ployment." "It  is  urged,"  says  Pitney,  V.  C.  in  Frank  &  Dugan  V.  Herold, 
63  N.  J.  Eq.  443  (1902),  p.  449,  "that  one  person  has  a  right  to  persuade 
another  to  work  or  not  to  work  that  may  be  if  the  other  person  is  willing 
to  listen  and  be  persuaded ;  but  no  person  has  the  right  to  impose  on  an- 
other his  arguments  or  persuasions  against  the  will  of  that  other  person 
to  listen.     .    .     .     No   person   has   a   right,   strictly   speaking,   to  accost   an- 


Il88       GOLDFIELD    COXSOL.    MINES    CO.    V.    GOLDFIELD    MINERs'    UNION. 

frain  from  exercising  a  legal  right  is  unlawful,  and  this  is  true  no 
matter  whether  the  attempt  is  made  by  one  man  or  many,  or  by  a 
corporation  or  a  labor  union.  Hence,  if  the  pickets,  or  members  of 
the  respondent  union,  who  gather  at  or  near  complainant's  premises 
at  the  time  of  the  morning  and  afternoon  change  of  shifts,  assail 
nonunion  men  with  threats,  ridicule,  and  insult,  or  follow  them  to  or 
from  their  work  with  vile  language  and  abusive  epithets  in  order  to 
compel  them  to  quit  work,  or  refrain  from  offering  their  labor  to 
tlie  complainant,  they  are  guilty  of  unlawful  conduct. 

The  affidavits  on  the  part  of  the  complainant,  as  well  as  other 
evidence  in  the  case,  convince  the  court  that  the  company's  premises 
are  almost  constantly  picketed,  day  and  night,  by  members  of  the 
jMiners'  Union  ;  that  there  are  altogether  too  many  pickets,  especially 
at  the  railroad  crossing  used  by  the  workmen  in  going  to  and  from 
the  mines  and  mill  to  the  company's  boarding  house.  The  unneces- 
sary massing  of  so  many  men  at  this  point  is,  in  itself,  an  act  of 
intimidation,  which  is  further  aggravated  by  insults,  threats,  and 
ridicule.  It  is  not  necessary  that  a  man  should  be  knocked  down  to 
be  intimidated.  The  most  reprehensible  intimidation  may  exist  not 
only  without  violence,  but  without  words,  or  even  the  lifting  of  a 
finger.  Whether  conduct  is  intimidating  or  not  depends  upon  the 
circumstances  of  each  case.  \\'hat  would  fill  a  timid  man  with  fear 
might  only  provoke  the  mirth  of  a  strong  man ;  and  a  simple  request, 
when  backed  up  by  a  display  of  physical  force,  may  overawe  the 
most  determined  man,  even  though  there  is  neither  threat  nor  vio- 
lence. The  vast  majority  of  wage-earners  are  peaceful,  law-abiding 
men,  who  instinctively  avoid  trouble  and  the  giving  of  offense.  Such 
men  would  cease  working,  or  refuse  to  work,  if  compelled  to  run 
the  gauntlet  of  a  picketing  system  such  as  the  evidence  shows  is  in 
force  at  and  near  complainant's  premises  in  Goldfield.  Notwith- 
standing the  denials  of  the  respondents,  the  affidavits  of  so  many 
witnesses,  guards,  and  employees  who  testify  to  what  they  have 
actually  seen  and  heard,  who  have  repeatedly  passed  by  or  made 
their  way  through  squads  of  pickets  at  the  crossing,  and  who  were 
often  the  victim  of  ridicule,  insult,  and  threat,  leave  no  doubt  in  the 
mind  of  the  court  that  the  pickets  were,  in  the  main,  members  of 
the  Goldfield  Miners'  Union ;  that  they  so  assembled  with  a  common 
p^lippose,  and  that  purpose  was  to  coerce  and  intimidate  nonunion 
men  who  washed  to  work  for,  or  who  are  already  in  the  employ  of 
Jthe  company.  This  conviction  is  strengthened  by  the  fact  that  the 
complainant  has  50  guards  and  deputy  sheriffs  in  its  employ  for  the 
protection  of  its  employees.  It  is  unreasonable  to  suppose  that  com- 
plainant would  go  to  an  expense  of  $250  per  day  for  this  purpose 
if  guards  were  not  needed.  OUs  Steel  Co.  v.  Local  Union  No.  218 
{C.  C.)  no  Fed.  6q8.  The  fact  that  men  have  quit  and  refused  to 
work,  and  the  further  fact  that  it  is  the  custom  to  send  and  have 
the  men  go  in  a  body  between  the  mines  and  the  company's  boarding 


other,   or   speak   to   him,    without   the   express    or    implied    consent    of    that 
other  person." 


GOLDFIELD    CONSOL.    MINES    CO.    V.    GOLDFIELD    MINERS'    UNION.        II89 

liouse,  and  that  guards  are  stationed  on  the  way,  show  that  there 
is  something  in  the  appearance,  conduct,  language,  or  numbers  of 
the  pickets  which  inspires  fear  among  the  employees  of  the  com- 
pany. It  is  significant  that  all  these  precautions  are  taken  while  a 
body  of  federal  troops  is  stationed  only  a  few  hundred  yards  away. 
It  also  appears  that  the  company  cannot,  by  reason  of  the  fear  which 
exists,  obtain  a  sufficient  number  of  men  to  operate  its  mines. 
Peaceful  picketing,  in  theory,  is  not  only  possible,  but  permissible. 
and,  asTong  as  it  "is  conhned  strictly  and  in  good  faith  to  gaining 
information,  and  to  peaceful  persuasion  and  argument,  it  is  not  for- 
bidden by  law.  Unfortunately,  peaceful  picketing  is  a  very  rare 
occurrence.  This  follows  from  the  very  nature  of  things.*  Men 
who  want  to  work  for  an  employer  who  is  eager  to  employ  them 
must  be  persuaded  not  to  work — persuaded  not  to  exercise  their 


legal  rights.  In  such  case  peaceable  solicitation  is  of  but  little 
effect,  and  when  it  becomes  persuasion  by  intimidation,  it  is  univer- 
sally condemned,  and  has  been  declared  unlawful  in  every  jurisdic- 
tion where  the  question  has  been  raised.  ;  These  views  will  find 
abundant  support,  not  only  in  the  cases  which  have  been  already 
cited,  but  in  the  following  authorities:  In  re  Doolittle  (C.  C.)  23 
Fed.  545;  Mackall  v.  Ratchford,  (C.  C)  82  Fed.  41;  American 
Steel  and  Wire  Co.  v.  ]]^ire  Drazvers',  etc.,  Unions  (C.  C.)  90  Fed. 
608,  614;  Southern  R.  Co.  v.  Machinists'  Union  (C.  C.)  11 1  Fed. 
54;  Union  Pac.  R.  Co.  v.  Ruef  (C.  C.)  120  Fed.  124;  Knudsen  v. 
Benn  (C.  C.)  123  Fed.  636;  Atchison  T.  &  S.  F.  Ry.  Co.  v.  Gee  (C. 
C.)  139  Fed.  582,  584;  Pope  Motor  Car  Co.  v.  Keegan  (C.  C.)  150 
Fed.  148;  AlUs-Chahners  Co.  v.  Iron  Molders'  Union  (C.  C.)  150 
Fed.  155,  179;  Beck  v.  Ry.  Teamsters'  Protective  Union,  118  ]\Iich. 
497,  yy  N.  W.  13,  42  L.  R.  A.  407,  74  Am.  St.  Rep.  421 ;  Vegclahn 
V.  Giintner,  167  Mass.  92,  44  N.  E.  1077,  35  L.  R.  A.  722,  57  Am. 
St.  Rep.  443;  Jensen  v.  Cooks'  and  Waiters'  Union,  39  Wash.  531, 
81  Pac.  1069,  4  L.  R.  A.  (N.  S.)  302;  Fletcher  Co.  v.  International 
Ass'n  of  Machinists  (N.  J.  Ch.)  55  Atl.  1077;  O'Neil  v.  Behanna, 
182  Pa.  236,  37  Atl.  843,  38  L.  R.  A.  382,  61  Am.  St.  Rep.  702 ; 
Winslozv  Bros.  Co.  v.  Building  Trades  Council,  31  Chicago  Legal 
News,  337,  cited  in  note  to  Jensen  v.  Cooks'  and  Waiters'  Union,  4 
L.  R.  A.  (N.  S.)  306. 


*"To  picket  the  plaintiff's  premises  in  order  to  intercept _  their  team- 
sters or  persons  going  there  to  trade  is  unlawful.  It  itself  is  an  act  of 
intimidation,"  Beck  v.  Teamsters'  Union,  supra,  p.  520 — here  the  picketing 
was  by  groups  of  from  five  to  twenty-five.  So  the  collection  of  large 
crowds  is  held  in  itself  intimidating  in  Pope  Motor  Co.  v.  Keegan,  150  Fed. 
148  (1906),  and  AUis-ChaUncrs  Co.  v.  Iron  Molders'  Union,  150  Fed.  155 
(1906),  per  Sanborn,  J.,  p.  181;  and  see  United  States  v.  Kane,  23  Fed. 
748  (1885),  per  Brewer,  J.  Where  a  crowd  of  strikers  is  collected  around 
a  non-union  employe,  it  is  idle  for  one  joining  the  crowd  to  say  that  his 
purpose  is  peaceable  solicitation.  "Neither  the  time  nor  the  circumstances 
were  such  as  to  make  an  appeal  possible,"  Ideal  Mfg.  Co.  v.  Ludwig,  149 
Mich.  133  (1907). 

In  Vegelahn  v.  Giintner,  167  Mass.  92  (1896),  strikers  were  enjoined 
from  maintaining  a  picket  of  two  men,  while  in  Jonas  Glass  Co.  V.  Associa- 
tion, 77  N.  J.  Eq.  219  (1910),  the  injunction  approved  restrained  the  asso- 


1 190  IRON    MOULDERS     UNION   V.    ALLIS-CHALMERS    CO. 

In  Mackall  v.  Ratchford  (C.  C.)  82  Fed.  41,  the  defendants 
had  joined  a  body  of  over  200  striking  miners  in  marching  with 
music  and  banners  by  one  of  the  mines  belonging  to  the  complain- 
ant.^ The  men  marched  and  countermarched  along  the  public  high- 
way for  three  days,  early  in  the  morning  and  again  late  at  night 
when  the  men  were  coming  off  shift,  and  on  each  occasion  the  men 
taking  part  in  the  procession  stopped  on  each  side  of  the  road  where 
the  miners  must  cross  in  going  to  and  from  the  mine.  The  avowed 
object  of  the  strikers  was  to  induce  the  miners  to  join  the  strike. 
There  were  no  threats  and  no  loud,  boisterous,  or  taunting  language. 
The  court  found  that  the  purpose  was  to  intimidate  the  men,  and 
thereby  induce  them  to  abandon  their  work,  and  secure  their  co- 
operation in  closing  the  mines.  It  was  held  that  the  conduct  of  the 
defendants  was  intimidating  and  unlawful,  and  they  were  punished 
for  violating  the  preliminary  injunction. 


IRON  ^lOULDERS'  UNION  v.  ALLIS-CHAOIERS  CO. 

Circuit  Court  of  Appeals,  Seventh  Circuit,  1908.     166  Fed.  Rep.  45. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
eastern  district  of  Wisconsin  ;  the  appeal  is  from  a  decree  in  a  strike 
injunction  suit,  the  fifth  clause  of  which  enjoined  the  defendants, 
four  Wisconsin  local  unions  of  the  National  Organization  of  Iron 
]\Ioulders  and  some  sixty  individual  members  thereof  "From  con- 
gregating upon  or  about  the  company's  premises  or  the  sidewalk, 
streets,  alleys  or  approaches  adjoining  or  adjacent  to  or  leading  to 
said  premises,  and  from  picketing  the  said  complainant's  places  of 
business  or  the  homes  or  boarding  houses  or  residences  of  the  said 
complainant's  employes." 

Baker,  D.  J.  With  respect  to  picketing  as  well  as  persuasion, 
we  thmk  the  decree  went  beyond  the  line.  The  right  to  persuade 
new  men  to  quit  or  decline  employment  is  of  little  worth  unless  the 
strikers  may  ascertain  who  are  the  men  that  their  late  employer  has 
persuaded  or  is  attemptng  to  persuade  to  accept  employmSfif:  Under 
the  name  of  persuasion,  duress  may  be  used ;  "btitiUTTHuress,  not 
persuasion,  that  should  be  restrained  and  punished.  In  the_guise_of 
picketing,  strikers  may  obstruct  and  annoy  the  newjueru^and  by  in-~" 
suit  and  menacing  attitude  intimidate  them  as  effect^+ally  as  b} 
physical  assault.  But  from  the  evidence  it  caq_always  be  deter- 
mined whether  the  efforts  of  the  pickets  are  limitedIto~^^tTTng  into 
communication  with  the  new  men  for  the  purpose_oT^pVesenting 
arguments  and  appeals  to  their  free  judgments.     Prohibitions  of 


ciation  "from  loitering  or  picketing  on  the  streets  near  the  premises  of  the 
complainant  with  the  intent  to  procure  the  personal  molestation  and  an- 
noyance  of   employees   and   persons   willing  to   be   employed." 

'See  also  Sherry  \.  Perkins,  147  :\Iass.  212  (1888),  and  Springhead 
Spinning  Co.  y.  Riley,  L.  R.  6  Eq.  Cas.  551  (1868),  strikers  restrained  from 
displaying  intimidating  banners  and  placards. 


KARGES    FURNITURE    CO.    V.    AMALGAMATED,    ETC.,    UNION.         IIQI 

persuasion  and  picketing,  as  such,  should  not  be  included^JnjJie^ 
decree.     Karyes  Furniture   Co.   v.   Amalgamated   Wood  Workers' 
Union,  165  Ind.  421,  75  N.  E.  877,  2  L.  R.  A.  (N.  S.)  7%^;  Evcrctt- 
IVaddey  Co.  v.  Typographical  Union,  105  Va.  188,  53  S.  E.  273,  5 
L.  R.  A.  (N.  S.)  792.1 

KARGES  FURNITURE  CO  v.  AMALGAMATED.  ETC., 

UNION. 

Supreme  Court  of  Indiana,  1905.     165  Ind.  421. 

"A  resides  in  a  populous,  a  residential  part  of  the  city.  B  has 
established  a  saloon  in  the  same  square.  Keeping  a  saloon  there  is 
a  lawful  business.  Many  of  the  neighbors  patronize  the  saloon,  and 
the  business  prospers.  A  disapproves  of  the  business  in  that  place, 
and  withholds  his  patronage.  He  has  the  absolute  right  to  withhold 
it.  The  other  neighbors  have  the  absolute  right  to  bestow  theirs.  B 
has  no  absolute  right  to  the  patronage  of  either,  and  without  patron- 
age will  fail  in  business.  Here  it  is  plain  that  A  has  the  absolute 
right  to  stand  on  the  street  corner  and  note  all  his  neighbors  who 
enter  and  leave  the  saloon,  hail  them  on  the  street,  or  visit  them_  at 
their  respective  homes,  and  by  argument  and  persuasion  (they  being 
willing  to  listen)  1  endeavor  to  induce  them  to  cease  their  patronage. 
A's  object  is  to  make  B's  business  unprofitable  and  losing,  and  thus 
compel  him  to  move  away,  and  improve  the  peace  and  attractiveness 
of  A's  neighborhood.  Now,  if  A  converts  all  of  his  neighbors  to 
his  course  of  conduct  by  argument,  reason,  entreaty  and  other  fair 
and  proper  means,  and  thereby  effects  the  suppression  of  the  saloon  . 
and  financial  ruin  of  B,  it  is  damnum  absque  injuria.  A  has  done 
nothing  but  what  the  law  protects  him  in  doing.^ 

^"A  union  may  appoint  pickets  or  a  committee  to  visit  the  vicinity  of 
factories  for  the  purpose  of  taking  notes  of  the  persons  employed  and  to 
secure,  if  it  can  be  done  by  lawful  means,  their  names  and  places  of  resi- 
dence for  the  purpose  of  peaceable  visitation."— Hadley,  J.  in  Karges  Fur- 
niture Co.  v.  Woodworkers'  Union.  165  Ind.  421  (1905),  p.  431;  Searle  Mfg. 
Co  v  Terry  106  N.  Y.  S.  438  (1905).  See  also  Angellotti  and  Sloss,  J  J.,  in 
Pierce  v.  Stablemen's  Union,  156  Cal.  70  (1909);  and  see  McPherson,  J.  m 
Union  Pacific  R.  Co.  v.  Rucf,  120  Fed.  102  (1902),  p.  114,  and  Rogers  v. 
Evarts,   17  N.   Y.   S.  264   (1891).  .      ^       ,         „       ,.7   ^,  m    t 

^See  the  3rd  clause  of  the  decree  affirmed  in  Frank  v.  Herold,  M  -\.  J. 
Eq   443  (1902). 

'  -Compare  Sherman,  V.  C.  in  Booth  v.  Burgess,  72  N.  J.  Eq.  181   (1906). 

So  long  as  the  conduct  of  the  defendants,  whether  an  association  or 
an  individual,  does  not  go  beyond  merely  giving  to  its  members  or  other 
persons  having  like  business  interests,  information  of  conduct  on  the 
plaintiff's  part  which  it  or  he  regards  as  injurious  to  such  interests,  or  is 
coupled  with  appeals  to  the  common  interests  of  such  persons  or  advise 
them  to  cease  dealing  with  the  plaintiff,  there  is  no  liability,  Ulery  v.  Cln- 
cago  Live  Stock  Ex..  54  111.  App.  233  (1894);  Shinola  Co.  v.  House  of 
Krieg,  133  N.  Y.  S.  1015  (1912)  ;  contra,  Olive  &  Sternenberg  v.  Van  Patten, 
7  Tex.  Civ.  App.  630  (1894)  ;  and  compare  Huskie  v.  Grifin,  post,  or  where 
union  workmen  appeal  to  the  class  feeling  of  non-union  workmen  to  join 
a  strike.  Vann.  J.  in  National  Protective  Association  of  Steam  Fitters  v. 
Cumming,  170  N.  Y.  315   (1902),  western  case,  or  where  employers  furnish 


Iiy2      GLAMORGAN    COAL    CO.    V.    SOUTH    WALES    MIXERs'    FEDERATION, 

2.    For  inducing  the  breach  of  contracts. 


GLAMORGAN  COAL  CO.  v.  SOUTH  WALES  MINERS'  FED- 
ERATION. 

In  the  Court  of  Appeal,  1903.    L.  R.  1903,  2  A'.  B.  Div.  545. 

The  Glamorgan  Coal  Company,  Limited,  and  seventy-three 
Other  plaintiffs,  owners  of  collieries  in  South  Wales,  brought  this 
action  against  the  South-Wales-  AlinersLEedsration,  its  trustees  and 
officers,  and  several  members  of  its  executive  council,  claiming  dam- 
ages for  wrongfully  and  maliciously  procuring  and  inducing  work- 
men in  the  collieries  to  break  their  contracts  of  service  with  the 
"pTaintiWspand  alternatively  for  wrongfully  and  maliciously  conspir- 

nngHLo  ^o  so.  The  wages  were  paid  upon  a  sliding  scale  agreement 
rising  and  falling  with  the  price  of  coal.  In  November,  1900,  the 
council  of  the  federation,  fearing  that  the  action  of  merchants  and 
middlemen  would  reduce  the  price  of  coal  and  consequently  the 
rate  of  wages,  resolved  to  order  a  "stop-day"  on  November  9,  and 
informed  the  workmen.  This  order  was  obeyed  by  over  100,000 
meaj-who  took  a  holiday  and"  thereby  broke  their  contracts  of  serv- 

_4££.  At  a  conference  held  on  November  12,  between  delegates 
of  the  men  and  the  council,  a  resolution  was  passed  authorizing  the 
council  to  declare  a  general  holiday  at  any  time  they  might  think  it 
necessary  for  the  protection  of  wages  and  of  the  industry  gerxcrally. 

TnOttober  and  November,  1901,  the  council  (as  Bigham  J.  found) 

.  ordered  four  stop-days  for  the  same  reason  as  before,  and  the  men 
took  a  holiday^on  each  of  those  days  in  breach  of  their  contracts. 
Bigham  J.  found  that  the  action  of  the  federation  was  dictated  by 
ari_honest  desire  to  forward  the  interest  of  the  workmen  and  was 
not  in~ahy  sense  prompted  by  a  wish  to  injure  the  masters,  between 

~\\hoht-*nd  the  men  there  was  no  quarrel  or  ill-will ;  that  having  been 
requested  by  the  men  by  the  resolution  of  November  12,  1900,  to 
advise  and  direct  them  as  to  when  to  stop  work,  the  federation  and 
its  officers  did  to  the  best  of  their  ability,  advise  and  direct  the  men 
honestly  and  withmit  malice  of  any  kind__against  the  plaintiffs,  and 
therefore  had  lawful  justification  or  "excuse  To^  what  they  did. 

-Vaughan  Williams,  L.  J,  In  the  present  case  the  prima  facie 
actiauablejvyrong  is  the  interference  with  the  contractual  rights  of 
the  plaintiffs,  and  the  question  is  whether  there  is  such  sufficient 


to  others  in  the  same  trade  the  names  of  strikers,  JVabash  R.  Co.  v.  Young, 
162  Ind.  102  (1903);  Bradley  v.  Pierson.  148  Pa.  St.  502  (1892);  Rhodes  v. 
Granby  Cotton  Mills,  87  S.  Car.  18  (1910),  and  see  Baker  v.  Metropolitan 
Life  Ins.  Co.,  64  S.  W.  913  (Ky.  1901),  and  Trimble  v.  Prudential  Life  Ins. 
Co.,  64  S.  W.  915  (Ky.  1901),  holding  that  the  prior  agreement,  not  to  em- 
ploy or  to  discharge  persons  of  the  plaintiff's  class,  being  void  as  against 
public  policy  and  so  not  obligatory  upon  them,  his  discharge  in  obedience 
thereto  was  his  employer's  voluntary  act.  See  also,  Rogers  v.  Ez'arfs.  17  X.  Y. 
S.  264  (1891),  holding  that  a  newspaper  could  not  be  restrained  from  appeal- 
ing to  the  public  to  support  a  strike. 


1 


GLAMORGAN    COAL    CO.    V.    SOUTH    WALES    MINERS'    FEDERATION.       II93 

justification  for  the  defendants'  interference  as  to  exclude  an  action 
for  procuring  a  breach  of  contract  or  for  conspiracy.  To  say  that 
the  means  employed  by  the  defendants  were  illegal,  because  of  the 
breach  of  contract,  seems  to  me  to  be  arguing  in  a  circle ;  and  I  dis- 
sent from  the  contention  of  the  appellants,  tliat  just  cause  for  inter- 
ference is  excluded  in  cases  where  the  advice  actually  given  is  to 
break  a  contract,  and  in  consequence  the  contract  is  broken.  It 
seems  to  me  in  the  result  that  the  only  question  in  this  case  is  whether 
the  interference  of  the  defendants  was  justified,  and  not  whether 
the  men  individually  could  justify  the  breaches  of  contract,  which 
of  course  they  could  not.  I  doubt  very  much  whether  an  action 
would  have  lain  against  the  aggregation  of  individual  men  for  pro- 
curing the  several  breaches  of  contract,  because  I  think  there  is  a 
good  deal  to  be  said  for  the  proposition  that  the  community  of  in- 
terest of  all  these  men  following  the  same  occupation  in  the  South 
Wales  coal  fields  entitled  them  to  confer  and  act  in  concert,  without 
rendering  themselves  liable  to  actions  for  procuring  breaches  of 
contract  by  one  another  or  for  conspiracy.  But  the  case  is  very 
much  complicated  by  the  existence  of  the  federation,  which,  ac- 
cording to  the  decision  in  the  Taff  Vale  Case,  (1901)  A.  C.  426,  is 
a  thing  which  can  own  property,  which  can  employ  servants,  and 
which  can  inflict  injury,  to  which  the  Legislature  has  impliedly 
given  the  power  to  sue,  and  on  which  the  Legislature  has  imposed 
the  liability  to  be  sued  for  injuries  purposely  done  by  its  authority 
and  procurement.  I  do  not  think  that  such  a  body  is  entitled  to  rely 
upon  a  defence  based  on  its  absolute  identity  with  the  aggregate  of 
individual  members  who  happen  to  constitute  the  union.  If  such 
absolute  identity  existed  it  would  follow  that  the  union  would  be 
responsible  for  the  aggregate  damages  resulting  from  the  aggregate 
breaches  of  contract,  and  no  action  for  procuring  breaches  of  con- 
tract, or  for  conspiracy,  would  be  necessary.  *  *  *  The  federation 
and  the  members  of  their  council,  who  are  defendants,  seek  to  base 
this  justification  on  the  suggestion  that  their  relation  to  the  men 
raises  a  duty  on  their  part  to  advise  the  men,  or,  at  all  events,  nega- 
tives their  being  mere  meddlers.  It  was  argued  before  us  that  the 
defendants  were  not  mere  advisers,  but  that  they  were  actors  who 
did  the  very  thing  complained  of,  in  that  they  issued  the  notices  or- 
dering the  stop-days,  and  compelled  reluctant  men  to  break  their 
contracts  by  staying  away  from  work  without  giving  proper  notices 
tjo  their  employers,  and  that  the  view  of  the  federation  was  that 
men  who  refused  to  stay  away  would  be  guilty  of  disloyalty  to  the 
federation ;  but  this  argument  does  not  convince  me  that  the  federa- 
tion were  not  acting  as  advisers,  nor  does  the  fact  that  the  federa- 
tion actually  issued  the  notices  deprive  the  defendants  of  their 
character  of  advisers.  It  is  not  sviggested  in  this  case  that  the  men 
stayed  away  from  work  under  threats,  intimidation,  or  physical  com- 
pulsion. I  think,  therefore,  the  judgment  of  Bigham,  J.  must  be 
affirmed  for  the  reasons  given  by  him. 

RoMER,  L.  J.    The  law  applicable  to  this  case  is,  I  think,  well 
settled.  I  need  only  refer  to  two  passages  in  which  the  law  is  shortly 


1 194     GLAMORGAN    COAL    CO.   V.    SOUTH    WALES    MIXERS     FEDERATION. 

and  comprehensively  stated.  In  Quinn  v.  Leathen,  (1901)  A.  C. 
495,  at  p.  510,  Lord  Macnaghten  said:  "A  violation  of  legal  right 
committed  knowingly,  is  a  cause  of  action,  and  it  is  a  violation  of 
legal  right  to  interfere  with  contractual  relations  recognized  by  law 
if  there  be  no  sufficient  justification  for  the  interference."^  And  in 
the  Mogul  Steamship  Co.  v.  McGregor,  Gow  &  Co.,  23  Q.  B.  D.  598, 
at  p.  614,  Bowen,  L.  J.  included  in  what  is  forbidden  "the  inten- 
tional procurement  of  a  violation  of  individual  rights,  contractual  or 
other,  assuming  always  that  there  is  no  just  cause  for  it."  But  al- 
though, in  my  judgment,  there  is  no  doubt  as  to  the  law,  yet  I  fully 
recognize  that  considerable  difficulties  may  arise  in  applying  it  to 
the  circumstances  of  any  particular  case.  When  a  person  has 
knowingly  procured  another  to  break  his  contract,  it  may  be  diffi- 
cult under  the  circumstances  to  say  whether  or  not  there  was  "suffi- 
cient justification  or  just  cause"  for  his  act.  I  think  it  would  be 
extremely  difficult,  even  if  it  were  possible,  to  give  a  complete  and 
satisfactory  definition  of  what  is  "sufficient  justification,"  and  most 
attempts  to  do  so  would  probably  be  mischievous.  I  certainly  shall 
not  make  the  attempt.  In  my  opinion,  a  defendant  sued  for  know- 
ingly procuring  such  a  breach,  is  not  justified  of  necessity  merely  by 
his  showing  that  he  had  no  personal  animus  against  the  employer, 
or  that  it  was  to  the  advantage  or  interest  of  both  the  defendant  and 
the  workman  that  the  contract  should  be  broken.  I  take  the  follow- 
ing simple  case  to  illustrate  my  view.  If  A.  wants  to  get  a  specially 
good  workman,  who  is  under  contract  with  B.,  as  A.  knows,  and  A. 
gets  the  workman  to  break  his  contract  to  B.'s  injury  by  giving  him 
higher  wages,  it  would  not,  in  my  opinion,  afford  A.  a  defence  to  an 
action  against  him  by  B.  that  he  could  establish  he  had  no  personal 
animus  against  B.,  and  that  it  was  both  to  the  interest  of  hin'hself 
and  of  the  workman  that  the  contract  with  B.  should  be  broken.  I 
think  that  the  principle  involved  in  this  simple  case,  taken  by  me  by 
way  of  illustration,  really  governs  the  present  case.  For  it  is  to  be 
remembered  that  what  A.  has  to  justify  is  his  action,  not  as  between 
him  and  the  workman,  but  as  regards  the  employer  B.  And,  if  I 
proceed  to  apply  the  law  I  have  stated  to  the  circumstances  of  the 
present  case,  what  do  I  find?  On  the  findings  of  fact  it  is  to  my 
mind  clear  that  the  defendants,  the  federation,  procured  the  men  to 
break  their  contracts  with  the  plaintiffs — so  that  I  need  not  consider 
how  the  question  would  have  stood  if  what  the  federation  had  done 
had  been  merely  to  advise  the  men,  or  if  the  men,  after  taking  ad- 
vice, had  arranged  between  themselves  to  break  their  contracts,  and 
the  federation  had  merely  notified  the  men's  intentions  to  the  plain- 
tiffs. The  federation  did  more  than  advise.  They  acted,  and  by 
their  agents  actually  procured  the  men  to  leave  their  work  and  break 
their  contracts.  In  short,  it  was  the  federation  who  caused  the  in- 
jury to  the  plaintiffs.     Now  the  justification  urged  is  that  it  was 

^  If  there  be  no  lawful  justification,  it  is  not  necessary  that  the  defend- 
ant's conduce  should  be  actuated  by  ill  will  or  hatred  of  the  plaintiff  or  by  a 
desire  to  injure  him,  Holder  v.  Cannon  Mfg.  Co.,  135  X.  Car.  392  (1904); 
Tubular  Rivet  &  Stud  Co.  v.  Exeter  Boot  Co.,  159  Fed.  824   (1908>. 


GLAMORGAX    COAL    CO.    V.    SOUTH    WALES    MIXERS*    FEDERATION.      II95 

thought,  and  I  will  assume  for  this  purpose  rightly  thought,  to  be 
in  the  interest  of  the  men  that  they  should  leave  their  work  in  order 
to  keep  up  the  price  of  coal  on  which  the  amount  of  wages  of  the 
men  depended.  As  to  this,  I  can  only  say  that  to  my  mind  the 
ground  alleged  affords  no  justification  for  the  conduct  of  the  federa- 
tion towards  the  employers ;  for,  as  I  have  already  pointed  out,  the 
absence  on  the  part  of  the  federation  of  any  malicious  intention  to 
injure  the  employers  in  itself  affords  no  sufficient  justification.  But 
it  was  said  that  the  federation  had  a  duty  towards  the  men  which 
justified  them  in  doing  what  they  did.  For  myself  I  cannot  see  that 
they  had  any  duty  which  in  any  way  compelled  them  to  act,  or  justi- 
fied them  in  acting,  as  they  did  towards  the  plaintiffs.  And  the 
fact  that  the  men  and  the  federation,  as  being  interested  in  or  acting 
for  the  benefit  of  the  men,  were  both  interested  in  keeping  up  prices, 
and  so  in  breaking  the  contracts,  aft'ords  in  itself  no  sufficient  justi- 
fication for  the  action  of  the  federation  as  against  the  plaintiff's,  as  I 
have  already  pointed  out.  I  think,  therefore,  that  the  appeal  must 
succeed. 

Lord  Macnaghten.  It  was  argued — and  that  was  the  only  ar- 
gument— that  although  the  thing  done  was  prima  facie  an  action- 
able  wrong,  itwas  justifiable  underQliecircumstahces.  i  hat  there 
may  be  a  justHicatioh  for  that  which  in  itseTt  is  an  actionable  wrong, 
I  do  not  for  a  moment  doubt.  But  what  is  the  alleged  justification 
in  the  present  case  ?  It  was  said  that  the  council — the  executive  of 
the  federation — had  a  duty  cast  upon  them  to  protect  the  interests 
of  the  members  of  the  union,  and  that  they  could  not  be  made  legally 
responsible  for  the  consequences  of  their  action  if  they  acted  hon- 
estly in  good  faith  and  without  any  sinister  or  indirect  motive.  The 
case  was  argued  with  equal  candour  and  ability.  But  it  seems  to 
me  that  the  argument  may  be  disposed  of  by  two  simple  questions. 
How  was  the  duty  created?  What,  in  fact,  was  the  alleged  duty? 
The  alleged  duty  was  created  by  the  members  of  the  union  them- 
selves, who  elected  or  appointed  the  officials  of  the  union  to  guide 
and  direct  their  action ;  and  then  it  was  contended  that  the  body  to 
whom  the  members  of  the  union  have  thus  committed  their  individ- 
ual freedom  of  action  are  not  responsible  for  what  they  do  if  they 
act  according  to  their  honest  judgment  in  furtherance  of  what  they 
consider  to  be  the  interest  of  their  constituents.  It  seems  to  me 
that  if  that  plea  were  admitted  there  would  be  an  end  of  all  respon- 
sibility. It  would  be  idle  to  sue  the  workmen,  the  individual  wrong- 
doers, even  if  it  were  practicable  to  do  so.  Their  counsellors  and 
protectors,  the  real  authors  of  the  mischief,  would  be  safe  from  legal 
proceedings.  The  only  other  question  is,  What  is  the  alleged  duty 
set  up  by  the  federation?  I  do  not  think  that  it  can  be  better  de- 
scribed than  it  was  by  Mr,  Lush.  It  comes  to  this — it  is  the  duty  on 
all  proper  occasions,  of  which  the  federation  or  their  officials  are  to 
be  the  sole  judges,  to  counsel  and  procure  a  breach  of  duty. 

I  agree  with  Romer  and  Stirling,  L.  J.  J.,  and  I  think  the  appeal 
must  be  dismissed. 

The  appellants'  counsel  did  not  deny  that,  in  his  view  of  the 


1 196      GLAMORGAN    COAL    CO.    V.    SOUTH    WALES    MIN'ERS'    FEDERATION. 

case,  the  defendants'  conduct  required  justification,  and  it  was  con- 
tended (i)  that  all  which  the  officials  did  was  to  advise'  the  men, 
and  (2)  that  the  officials  owed  a  duty  to  the  men  to  advise  and 
assist  them  as  they  did. 

As  regards  advice,  it  is  not  necessary  to  consider  when,  if  ever, 
mere  advice  to  do  an  unlawful  act  is  actionable  when  the  advice  is 
not  libellous  or  slanderous.  Nor  is  it  necessary  to  consider  those 
cases  in  which  a  person,  whose  rights  will  be  violated  if  a  contract 
is  performed,  is  justified  in  endeavoring  to  procure  a  breach  of  such 
contract.  Nor  is  it  necessary  to  consider  what  a  parent  or  guardian 
may  do  to  protect  his  child  or  ward.  That  there  are  cases  in  which 
it  is  not  actionable  to  exhort  a  person  to  break  a  contract  may  be 
admitted;  and  it  is  very  difficult  to  draw  a  sharp  line  separating  all 
such  cases  from  all  others.-  But  the  so-called  advice  here  was  much 
more  than  counsel;  it  was  accompanied  by  orders  to  stop,  which 
could  not  be  disobeyed  with  impunity.  A  refusal  to  stop  work  as  or- 
dered would  have  been  regarded  as  disloyal  to  the  federation.  This 
is  plain  from  the  speeches  given  in  evidence  on  the  trial ;  and  in  my 
opinion  it  is  a  very  important  element  in  the  case  which  cannot  he 
ignored. 

i  As  regards  duty,  the  question  immediately  arises — duty  to  do 
what?  The  defendants  have  to  justify  a  particular  line  of  conduct, 
which  was  wrongful,  /.  e.,  aiding  and  abetting  the  men  in  doing  what 
both  the  men  and  the  officials  knew  was  legally  wrong.  The  consti- 
tution of  the  union  may  have  rendered  it  the  duty  of  the  officials  to 
advise  the  men  what  could  be  legally  done  to  protect  their  own  in- 
terests ;  but  a  legal  duty  to  do  what  is  illegal  and  known  so  to  be  is 
a  contradiction  in  terms.  A  similar  argument  was  urged  without 
success  in  the  case  of  Friendly  Society  of  Stonemasons  already  re- 
ferred to. 

Then  your  Lordships  were  invited  to  say  that  there  was  a  moral 
or  social  duty  on  the  part  of  the  officials  to  do  what  they  did,  and 
that,  as  they  acted  bona  fide  in  the  interest  of  the  men  and  without 
any  ill-will  to  the  employers,  there  conduct  was  justifiable;  and  your 
Lordships  were  asked  to  treat  this  case  as  if  it  were  hke  a  case  of 
libel  or  slander  on  a  privileged  occasion.  My  Lords,  this  contention 
was  not  based  on  authority,  and  its  only  merits  are  its  novelty  and 
ingenuity.  The  analogy  is,  in  my  opinion,  misleading,  and  to  give 
eflfect  to  this  contention  would  be  to  legislate  and  introduce  an  en- 
tirely new  law,  and  not  to  expound  the  law  as  it  is  at  present.  It 
would  be  to  render  many  acts  lawful  which,  as  the  law  stands,  are 
clearly  unlawful. 

My  Lords,  I  have  purposely  abstained  from  using  the  word 
'"malice."    Bearing  in  mind  that  malice  may  or  may  not  be  used  to 


^'In  Legris  v.  Marcottc,  \29  111.  App.  67  (1906),  it  was  held  that  no  action 
lay  against  the  mother  of  a  pupil  of  a  convent  school  for  inducing  the 
mother  superior  to  dismiss  the  plaintiff,  a  pupil  therein,  m  breach  of  her 
contract  with  the  plaintiff's  mother,  by  statements  untrue  but  honestly  be- 
lieved l)v  the  defendant  that  the  plaintiff's  fatlier  suffered  from  a  loathsome, 
contagious  disease  which  the  defendant  feared  that  the  plaintiff  might  com- 
municate to  the  other  pupils. 


I 


KEMP   V.    DIVISION    NO.    24I.  II97 

denote  ill-will,  and  that  in  legal  language  presumptive  or  implied 
malice  is  distinguishable  from  express  malice,  it  conduces  to  clear- 
ness in  discussing  such  cases  as  these  to  drop  the  word  "malice"  al- 
together^ and  to  substitute  for  it  the  meaning  which  is  really  in- 
tended to  be  conveyed  by  it.  Its  use  may  be  necessary  in  drawing  in- 
dictments ;  but  when  all  that  is  meant  by  malice  is  an  intention  to 
commit  an  unlawful  act  without  reference  to  spite  or  ill-feeling,  it 
is  better  to  drop  the  word  malice  and  so  avoid  all  misunderstanding. 
This  appeal  ought  to  be  dismissed  with  costs.^ 


3.    For  the  use  of  economic  power  as  a  means  of  compulsion. 


(a)    Conflicting  interests  of  employer  and  employed. 


(1  )   The  right  to  strike. 


KEMP  V.  DIVISION  NO.  241. 

Supreme  Court  of  Illinois,  1912.     255  ///.  213. 

Mr.  Justice  Cooke.  The  question  presented  for  our  determi- 
nation is,  whether  a  court  of  equity  is  authorized,  upon  application 
by  the  non-union  employees,  to  restrain  the  union  and  its  officers 
from  calling  a  strike  of  the  union  employees  in  accordance  with  the 
vote  previously  taken  by  the  union  employees  as  members  of  the 
union,  where  the  purpose  of  the  proposed  strike  is  to  compel  the 

^Accord:  Branch  v.  Roth,  10  Ont.  L.  R.  284  (1904)  ;  Cotter  v.  Osborne, 
18  Manitoba  L.  R.  471  (1909). 

Even  though  a  strike  is  justifiable  as  being  to  better  the  work  conditions 
of  the  strikers,  the  inducing  of  either  an  employee  to  break  his  contract  of 
employment  or  a  customer  to  break  his  contract  with  the  employer  is  an  ille- 
gal means  of  carrying  it  on,  Jersey  City  Printing  Co.  v.  Cassidy,  post;  Jonas 
Glass  Co.  V.  Glass  Blowers'  Assn.,  77  N.  J.  Eq.  219  (1910)  ;  Flaccus  v.  Smith, 
199  Pa.  St.  128  (1901),  and  see  Thomas  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co., 
62  Fed.  803  (1894),  and  a  strike  to  compel  the  discharge  of  an  employee 
working  under  a  binding  contract  of  employment  is  unlawful  no  matter  how 
great  the  advantage  which  would  accrue  to  the  strikers  from  his  discharge, 
Read  v.  Friendly  Society,  etc.,  L.  R.  1902,  2  K.  B.  732. 

Nor  will  trade  competition  justify  the  procurement  of  breaches  of  con- 
tract with  a  trade  rival,  Dor  emus  v.  Hennessy,  176  111.  608  (1898)  ;  Beekman 
v.  Marsters,  195  Mass.  205  (1907),  defendant  persuaded  a  hotel  company, 
which  had  by  contract  given  the  sole  agency  for  booking  accommodations 
therein  to  the  plaintiff,  that  it  had  been  unwise  in  so  doing  and  induced  it  to 
give  him  the  same  rights  as  the  plaintiff.  It  was  said  that  "no  case  has  been 
cited  which  holds  that  the  right  to  compete  justifies  a  defendant  in  intention- 
ally inducing  a  third  person  to  take  away  from  the  plaintiff  his  contractual 
rights." 

See  also.  Tubular  Rivet  &  Stud  Co.  v.  Exeter  Boot  Co.,  159  Fed.  824 


I  198  KEMT    T'.    DIVISION-    NO.    24T. 

employer  to  discharge  the  non-union  employees  who  are  engaged 
in  the  same  class  of  work/ 

In  order  to  decide  this  question  in  the  affirmative  it  would  be 
necessary  to  hold  that  had  the  threatened  act  been  completed,  ap- 
pellees would  have  been  entitled  to  maintain  an  action  for  damages 
against  the  union  and  its  officers  for  accomplishing  their  discharge 
from  the  service  of  the  Railways  Company,  and  that  such  action  at 
law  would  not  afford  an  adequate  remedy  because  of  the  financial 
inability  of  appellants  to  respond  in  adequate  damages  for  the  in- 
juries which  appellees  would  suffer  by  reason  of  their  discharge. 
The  inadequacy  of  the  remedy  at  law  sufficiently  appears  from  the 
bill,  and  it  will  only  be  necessary  to  determine  whether  the  appellees 
would  have  been  entitled  to  maintain  the  action  for  damages  had 
their  discharge  been  accomplished  by  appellants. 

That  the  appellees  would  sustain  damages  if  discharged  by  the 
Railways  Company,  and  that  such  discharge  and  consequent  damages 
would  be  occasioned  by  the  acts  of  the  appellants,  acting  for  and  on 
behair  of  the  union  employees,  clearly  appears  from  the  bill.  The 
mere  fact  that  one  person  sustains  damage  by  reason  of  some  act  of 
another  is  not,  however,  sufficient  to  render  the  latter  liable  to  an 
action  by  the  former  for  such  damage,  but  it  must  further  appear 
that  the  act  which  occasioned  the  damage  was  a  wrongful  act  and 
not  performed  in  the  exercise  of  a  legal  right,  otherwise  it  is 
damnum  absque  injuria. 

Every  employee  has  a  right  to  protection  in  his  employment 
from  the  wrongful  and  malicious  interference  of  another  resulting 
in  damage  to  the  employee,  but  if  such  interference  is  but  the  con- 
sequence of  the  exercise  of  some  legal  right  by  another  it  is  not 
wrongful,  and  cannot,  therefore,  be  made  the  basis  for  an  action  to 
recover  the  consequent  damages.  It  is  the  right  of  every  workman, 
for  any  reason  which  may  seem  sufficient  to  him,  or  for  no  reason, 
to  quit  the  service  of  another,  unless  bound  by  contract.  This  right 
cannot  be  abridged  or  taken  away  by  any  act  of  the  legislature,  nor 
is  it  subject  to  any  control  of  the  courts,  it  being  guaranteed  to 
every  person  under  the  jurisdiction  of  our  government  by  the  thir- 
teenth amendment  to  the  Federal  constitution,  which  declares  that 
involuntary  servitude,  except  as  a  punishment  for  crime,  shall  not 
exist  within  the  United  States  or  any  place  subject  to  their  jurisdic- 
tion. Incident  to  this  constitutional  right  is  the  right  of  every  work- 
man to  refuse  to  work  with  any  co-employee  who  is,  for  any  rea- 


(C.  C.  A.  1st  Circ.  1908),  where  the  plaintiff,  having  had  a  dispute  with  the 
defendant,  who  had  previously  sold  him  machinery,  over  a  twenty-five  cent 
freight  charge,  the  defendant  notified  another  manufacturer,  vrAh  whom  it 
had  an  agreement  for  mutual  protection  from  insolvent  customers  and  who 
had  sold  machinery  to  the  plaintiff,  that  the  latter  owed  it  an  unpaid  bill, 
whereupon  the  latter  refused  to  deliver  the  machinery. 

^  It  appears  from  the  plaintiff's  bill  that  the  plaintiffs,  who  had  been 
members  of  the  union,  having  become  dissatisfied  with  the  manner  in  which 
its  funds  had  been  expended  had  resigned  therefrom.  The  vote  of  the  Union 
declared,  that  its  members  would  "cease  to  work  with  men  who  after  receiv- 
ing benefits  through  our  organization  refuse  to  continue  members." 


KEMP   Z'.   DIVISION    NO.    24I.  II99 

son,  objectionable  to  him,  provided  his  refusal  does  not  violate  his 
contract  with  his  employer ;  and  there  is  no  more  foundation  for  the 
contention  that  the  employee  commits  an  actionable  wrong  by  in- 
forming the  employer,  before  he  leaves  the  service,  that  he  will  not 
work  with  the  objectionable  co-employee,  and  thereby  occasioning 
his  discharge,  than  there  would  be  for  the  contention  that  the  em- 
ployee would  commit  an  actionable  wrong  by  quitting  the  service  and 
afterward  stating  to  the  employer  his  reason  therefore,  if,  as  a  result 
thereof,  the  employer  should  choose  to  discharge  the  objectionable 
co-employee.  In  either  case  the  employee  is  exercising  a  legal  right, 
and  although  it  results  in  damage  to  the  objectionable  co-employee, 
the  latter  has  no  cause  of  action  against  the  former  for  causing  his 
discharge.  In  the  case  at  bar,  had  the  union  employees,  as  individ- 
uals and  without  any  pre-arranged  concert  of  action,  each  informed 
the  Railways  Company  that  they  would  no  longer  work  with  the  ap- 
pellees because  appellees  were  not  members  of  the  union,  and  had  ap- 
pellees, in  consequence  thereof,  been  discharged  because  the  Rail- 
ways Company  chose  to  retain  the  services  of  the  union  employees, 
appellees  would  have  had  no  cause  of  action  against  the  union  em- 
ployees for  thus  causing  their  discharge.  Does  the  fact  that  the 
union,  its  officers  and  committees,  acted  as  an  intermediary  between 
the  union  employees  and  the  Railways  Company,  and  under  the  cir- 
cumstances and  for  the  purposes  disclosed  by  the  bill,  render  unlaw- 
ful the  action  by  it,  or  them,  which  would  have  been  lawful  if  per- 
formed by  the  union  employees  individually  ? 

Labor  unions  have  long  since  been  recognized  by  the  courts  of 
this  country  as  a  legitimate  part  of  the  industrial  system  of  this 
nation. 

The  purpose  of  organizing  labor  unions  is  to  enable  those  em- 
ployees who  become  mem.bers  to  negotiate  matters  arising  between 
them  and  their  employers  through  the  intermediation  of  officers  and 
committees  of  the  union  and  to  accomplish  their  ends  through  con- 
certed action.  If  duly  authorized  by  the  employees  to  adjust  any 
controversy  arising  between  them  and  their  employer,  the  union,  its 
officers  and  committees  are  merely  acting  as  agents  of  the  employees 
in  the  matter.  The  demand  that  appellees  be  discharged,  and  the 
threat  that  unless  the  Railways  Company  complied  with  the  demand 
the  members  of  the  union  would  call  a  strike  of  the  employees  of 
the  Railways  Company,  in  effect  meant  no  more  than  the  mere 
statement  that  the  union  employees  of  the  Railways  Company  would 
no  longer  work  with  the  non-union  employees,  and  if  the  Railways 
Company  chose  to  retain  in  its  employ  the  non-union  men  the  union 
employees  would  quit  the  service  of  the  Railways  Company. 

No  contract  rights  being  involved,  the  union  employees  had  a 
right  to  quit  the  service  of  the  Railways  Company,  either  singly  or 
in  a  body,  for  any  reason  they  chose  or  for  no  reason  at  all.  If  the 
only  purpose  of  the  union  employees  was  to  quit  the  service  and 
permanently  sever  their  connections  with  their  employer,  appellees 
would  in  nowise  be  damaged  and  could  have  no  grounds  for  in- 
junctive relief.    The  bill  discloses,  however,  that  this  was  not  the 


I20O  KEMP   V.    DIVISIOX    NO.    24I. 

only  purpose  of  the  members  of  the  union.  They  did  not  propose 
absolutely  to  sever  their  connection  with  their  employer,  but  by 
means  of  a  strike  to  withdraw  temporarily  their  services,  and  then, 
by  such  means  as  might  be  proper  and  permissible,  seek  to  induce 
their  employer  to  accede  to  their  demands  and  reinstate  them  in  the 
service  under  the  conditions  they  sought  to  impose.  By  thus  com- 
bining it  becomes  necessary  to  inquire  whether  the  purpose  of  the 
combination  was  a  lawful  one. 

V_^While  it  cannot  be  successfully  contended  that  every  strike  is 
lawful,  it  is  generally  conceded  by  our  courts  that  workmen  may 
quit  in  a  body,  or  strike,  in  order  to  maintain  wages,  secure  ad- 
vancement in  wages,  procure  shorter  hours  of  employment  or  attain 
any  other  legitimate  object. 

No  threats  are  made  and  no  violence  is  threatened.  The  mem- 
bers of  the  union  have  simply  said  to  their  employer  that  they  will 
not  longer  work  with  men  who  are  not  members  of  their  organiza- 
tion, and  that  they  will  withdraw  from  their  employment  and  use 
such  proper  means  as  they  may  to  secure  employment  under  the 
desired  conditions. 

It  is  insisted  that  a  strike  is  lawful  only  in  a  case  of  direct  com- 
petition, and  as  it  cannot  be  said  that  the  union  employees  are  in 
any  sense  competing  with  appellees,  their  acts  cannot  be  justified. 
It  is  true,  as  has  been  stated,  that  the  proposed  strike  was  not  to  be 
called  for  the  direct  purpose  of  securing  better  wages  or  shorter 
hours  or  to  prevent  a  reduction  of  wages,  any  one  of  which  would 
have  been  a  proper  object.  The  motive  was  more  remote  than  that, 
but  it  was  kindred  to  it.  The  purpose  was  to  strengthen  and  pre- 
serve the  organization  itself.  Without  organization  the  workmen 
would  be  utterly  unable  to  make  a  successful  effort  to  maintain  or 
increase  their  wages  or  to  enforce  such  demands  as  have  been  held 
to  be  proper.  The  following  view  expressed  by  Mr.  Chief  Justice 
Holmes  in  his  dissenting  opinion  in  Plant  v.  Woods,  176  Mass.  492, 
in  discussing  facts  similar  to  those  here  involved,  is  in  our  opinion 
a  correct  statement  of  the  law  and  is  applicable  here :  "That  pur- 
pose was  not  directly  concerned  with  wages.  It  was  one  degree 
more  remote.  The  immediate  object  and  motive  was  to  strengthen 
the  defendant's  society  as  a  preliminary  means  to  enable  it  to  make 
a  better  fight  on  questions  of  wages  or  other  matters  of  clashing 
interests.  I  differ  from  my  brethren  in  thinking  that  the  threats 
were  as  lawful  for  this  preliminary  purpose  as  for  the  final  one  to 
which  strengthening  the  union  was  a  means.  I  think  that  unity  of 
organization  is  necessary  to  make  the  contest  of  labor  effectual,  and 
that  societies  of  laborers  lawfully  may  employ  in  their  preparation 
the  means  which  they  might  use  in  the  final  contest." 

If  it  is  proper  for  workmen  to  organize  themselves  into  such 
combinations  as  labor  unions,  it  must  necessarily  follow  that  it  is 
proper  for  them  to  adopt  any  proper  means  to  preserve  that  organi- 
zation. If  the  securing  of  the  closed  shop  is  deemed  by  the  mem- 
bers of  a  labor  union  of  the  utmost  importance  and  necessary  for  the 
preservation  of  their  organization,  through  which,  alone,  they  hcvi^ 


KEMP   V.    DIVISION    NO.    24I.  1201 

been  enabled  to  secure  better  wages  and  better  working  condi- 
tions, and  if  to  secure  that  is  the  primary  object  of  the  threat  to 
strike,  even  though  in  the  successful  prosecution  of  the  object  of 
the  combination  injury  may  result  incidentally  to  non-union  men 
through  the  loss  of  their  positions,  that  object  does  not  become  un- 
lawful. It  is  apparent  that  in  this  case  the  sole  purpose  was  to 
insure  employment  by  the  Railways  Company  of  union  men,  only. 
The  appellees  had  the  right  to  retain  their  membership  in  the  union 
or  not,  as  they  saw  fit.  On  the  other  hand,  if  the  members  of  the 
union  honestly  believed  that  it  was  to  their  best  interests  to  be  en- 
gaged in  the  same  employment  with  union  men  only,  and  that  it  was 
a  detriment  and  a  menace  to  their  organization  to  associate  in  the 
same  employment  with  non-members,  it  was  their  right  to  inform 
the  common  employer  that  they  would  withdraw  from  its  service 
and  strike  unless  members  of  the  union,  only,  were  employed,  even 
though  an  acquiescence  in  their  demands  would  incidentally  result 
in  the  loss  of  employment  on  the  part  of  the  non-union  men.  It 
was  only  incumbent  upon  them  to  act  in  a  peaceful  and  lawful  man- 
ner ^n  carrying  out  their  plans.- 

The  cases  of  Doremus  v.  Hennessy,  176  111.  608,  and  Wilson  v. 
Hey,  2^2  id.  389,  also  relied  upon  by  appellees,  and  the  case  of 
Purington  v.  Hinchliif,  219  id.  159,  were  all  boycott  cases. ^ 

The  primary  object  of  a  boycott  being  to  inflict  injury  upon 


-"In  Gillespie  v.  People,  188  111.  176,  a  statute  making  it  a  misdemeanor 
for  an  employer  to  prevent  an  employee,  by  threats,  from  joining  a  labor 
organization,  or  to  discharge  an  employee  because  of  membership  in  a  labor 
organization,  was  held  to  be  unconstitutional,  and  the  right  of  an  employer  to 
discharge  his  employee  solely  because  he  would  not  resign  from  his  union 
was  upheld.  That  employes  might  suffer  by  remaining  members  of  their 
unions,  or  that  they  might  through  necessity  be  compelled  to  disband  the  or- 
ganizations they  had  built  up  and  maintained  for  their  own  proper  benefit, 
could  not  affect  the  right  of  the  employer.  He  has  the  right  to  manage  his 
business  as  he  sees  fit.  It  would  seem  that  labor  organizations  should  be  ac- 
corded the  same  right  to  manage  their  affairs  and  to  determine  what  is  best 
for  their  own  interests.  To  den}-  them  the  right  to  determine  whether  their 
best  interests  required  that  they  should  be  associated  in  their  work  only  with 
members  of  their  organization  would  imperil  their  very  existence.  If  they 
have  the  right  to  make  such  a  requirement,  then  when  their  employer  pro- 
cures non-union  labor  they  have  the  right  to  strike  to  enforce  that  rc(|uire- 
ment,  as  that  is  the  only  peaceable  method  available  to  compel  an  adjustment 
of  their  controversies  and  to  preserve  the  integrity  of  their  organizations. 
From  the  facts  as  disclosed  by  the  bill  it  can  only  be  said  that  the  members 
of  the  union,  upon  deliberation,  concluded  that  their  own  welfare  and  busi- 
ness interests  required  that  they  cease  working  with  those  who  were  not 
members  of  their  organization.  This  being  their  primary  object,  they  have 
the  right  to  quit  the  employment  and  go  upon  a  strike  and  to  use  all  proper 
means  to  secure  their  reinstatement  upon  the  conditions  desired." 

^The  case  of  Barnes  v.  Typographical  Union,  232  111.  424  (1908"),  is  dis- 
cussed and  stated  to  be  a  case  similar  to  O'Brien  v.  PeoMc,  216  111.  354  (1905), 
and  Franklin  Union  v.  People.  220  111.  355  (1906),  in  that  the  injunction  vio- 
lated in  the  two  latter  and  asked  in  the  former,  was  against  picketing  and 
other  unlawful  acts  and  so  the  statements  condemning  peaceful  strikes  for  a 
"closed  shop"  were  dicta.,  but  the  dissenting  opinion  of  .Scott  and  Fnrmer. 
TJ..  seems  to  indicate  that  they  at  least  bel'eved  that  the  injunction  affirmed 
was  sufficiently  broad  to  cover  peaceable  persuasion. 


I202I  KEMP  V.   DIVISION    NO.   24I. 

another,  has  universally  been  held  to  be  illegal.  Here  the  primary 
object  of  the  combination  is  to  further  the  interests  of  the  organiza- 
tion and  improve  and  better  the  condition  of  its  members.  What- 
ever injury  may  follow  to  others  is  merely  incidental'."" 

The  judgment  of  the  Appellate  Court  is  reversed  and  the  de- 
cree of  the  circuit  court  is  affirmed. 

Judgment  reversed. 

Mr.  Justice  Carter,  specially  concurring : 

The  intentional  infliction  of  damage  is  a  tort  out  of  vi^hich  an 
action  may  arise  unless  there  is  just  cause  for  inflicting  the  damage. 

The  difficulty,  especially  in  labor  disputes,  arises  in  applying 
them,  in  order  to  decide  whether  there  was  just  cause  for  inflicting 
the  damage. 

It  is  difficult  to  conceive  of  a  strike  without  damage  to  the  par- 
ties involved  in  the  dispute.  The  employees  intend  to  deprive  the 
employers  of  their  labor  and  prevent  them  from  getting  others  to 
take  their  places.  They  intentionally  inflict  harm  as  a  means  of 
compelling  the  employers  to  yield  to  their  demands.  The  American 
and  English  authorities  now  all  agree  that  employees  have  the  same 
right  as  employers  to  combine  for  the  legitimate  advancement  of 
their  interests ;  that  for  the  purpose  of  advancing  the  legitimate  in- 
terests of  the  members  of  a  labor  union,  and  not  for  the  purpose  of 
oppressing  or  injuring  others,  they  may  strike  or  threaten  to  strike. 
This  may  be  done  to  secure  a  raise  in  wages,  shorter  hours,  better 
sanitary  conditions,  or  any  other  lawful  purpose  the  primary  object 
of  which  is  to  benefit  themselves.  And  this  principle  is  enforced 
even  though,  as  a  natural  incident  thereto,  damage  is  inflicted  upon 
the  employer."  On  these  questions  of  the  management  and  control, 
as  well  as  the  rights,  of  great  combinations  of  capital  and  labor,  the 
rights  of  the  public  "as  a  distinct  entity"  must  be  considered.  (Bige- 
low  on  Centralization  and  the  Law,  7;  20  Harvard  Law  Rev.  436.) 
Individual  liberty  must  be  subject  to  such  restraint  as  the  public  in- 
terests may  require,  and  when  the  two  conflict  the  former  must 
yield.  Adair  v.  United  States,  13  Ann.  Cas.  764,  and  note;  208  U. 
S.  161. 

In  this  case  there  is  no  question  of  violence,  intimidation,  un- 
lawful coercion,  threats  or  other  unlawful  methods,  unless  it  can  be 
said  that  a  threat  to  strike  if  non-union  men  are  not  discharged  is 
intimidation,  as  that  term  is  used  in  this  class  of  cases.  The  courts 
of  Massachusetts  have  held  that  a  strike  for  purposes  similar  to 
those  shown  in  the  allegations  in  the  bill  in  this  case  was  not  lawful ; 
that  the  officers  and  members  of  a  labor  union  would  be  held  in  an 
action  of  tort  for  inducing  an  employer  to  discharge  a  workman 
because  he  did  not  belong  to  the  union,  {Plant  v.  Woods,  supra; 
Berry  v.  Donovan,  188  Mass.  353)  ;  and  that  such  a  strike  could  be 
enjoined.  (Folsom  v.  Lewis,  94  N.  E.  Rep.  (Mass.)  316.)*  In 
other  jurisdictions  in  this  country  the  same  general  rule  has  been 


*See  also.  Aberthaw  Construction  Co.  v.  Cameron,  194  Mass.  208  (1907). 


KEMP   Z'.   DIVISION    XO.    24I.  I203 

laid  down  as  followed  in  Alassachusetts.  (See  Erdman  v.  Mitchell, 
207  Pa.  St.  79;  Purz'is  v.  United  Brotherhood,  214  Pa.  St.  348; 
Lucke  V.  Clothing  Cutters,  yy  Md.  396;  Brennan  v.  United  Hatters, 
supra;  Perkins  v.  Pendleton,  90  ]Me.  166;  Everctt-Waddey  Co.  v. 
Richmond  Typographical  Union,  105  ^'a.  188;  i?fc/e  v.  Teamsters' 
Protective  Union,  118  Mich.  497;  i   Eddy  on  Combinations,  sec. 

517-)' 

Other  courts  have  upheld  the  contention  of  appellants  on  the 
question  under  consideration.  In  National  Protective  Ass'n  v.  Cmn- 
ming,  170  N.  Y.  315,  it  was  held  that  a  labor  union  might  refuse  to 
permit  its  members  to  work  with  fellow-servants  who  were  mem- 
bers of  a  rival  organization,  and  might  notify  the  employers  to  that 
effect  and  that  a  strike  would  be  ordered  unless  such  fellow-servants 
were  discharged ;  that  even  though  the  employers  objected  to  the 
discharge,  neither  they  nor  the  organization  of  which  they  were 
members  would  have  a  right  of  action  against  the  labor  union  or  its 
members.  In  Gray  v.  Building  Trades  Council,  91  j\Iinn.  171,  the 
court  stated  that  the  authorities  very  generally  held  that  the  mem- 
bers of  a  labor  union  may,  singly  or  in  a  body,  quit  the  services  of 
their  employer,  and  for  the  purpose  of  strengthening  their  associa- 
tion may  persuade  and  induce  others  in  the  same  occupation  to  join 
their  union,  and  as  a  means  to  that  end  may  refuse  to  allow  their 
members  to  work  in  places  where  non-union  labor  is  employed.  In 
Jersey  City  Printing  Co.  v.  Cassidy,  63  N.  J.  Eq.  759,  the  court 
said  (p.  762)  :  "Union  workmen  who  inform  their  employer  that 
they  will  strike  if  he  refuses  to  discharge  all  non-union  workmen  in 
his  employ  are  acting  within  their  absolute  right,  and,  in  fact,  are 
merely  dictating  the  terms  upon  which  they  will  be  employed."*^ 
The  reasoning  in  this  case  was  approved  in  Booth  Bros.  v.  Burgess, 
72  N.  J.  Eq.  181.  To  the  same  effect  is  Allis-ChaUners  Co.  v.  Iron 
Moulders'  Union,  150  Fed.  Rep.  155.  (18  Am.  &  Eng.  Ency.  of 
Law, — 2d  ed. — 84;  see,  also.  Clothing  Co.  v.  Watson,  168  Mo.  133; 
Cooke  on  Combinations,  sec.  60;  State  v.  Van  Pelt,  136  N.  C.  633 ; 
Parkinson  v.  Building  Trades  Council,  154  Cal.  581 ;  18  Law  Quar- 
terly Rev.  I.) 


^"Some  of  these  cases  do  not  strictly  bear  on  the  question  here  under 
discussion.  In  Erdman  v.  Mitchell,  supra,  the  injunction  issued  was  sus- 
tained on  the  ground,  among  others,  that  it  was  sought  by  the  defendants  to 
prevent  the  complainant  from  securing  employment  "with  anj'  other  employer 
whatsoever."  In  Lucke  v.  Clothing  Cutters,  supra,  certain  non-union  em- 
ployees sought  admission  to  the  union  and  were  refused  without  any  appar- 
ent reason.  That  case  and  Beck  v.  Teamsters'  Union,  supra,  also  involved 
violence.  In  Plant  v.  Woods,  supra,  there  was  a  contest  between  two  rival 
labor  unions  of  the  same  craft;  at  the  time  that  the  threat  was  made  to  strike 
if  certain  persons  were  not  discharged  it  was  intimated  also  that  the  employer, 
if  he  refused,  "might  expect  trouble  in  his  business."  The  opinion  held  that 
this  last  statement  meant  more  than  that  the  strikers  would  cease  to  work." 
See  also  accord  with  the  cases  cited,  Martsll  v.  Victorian  Miners'  Associa- 
tion, 29  Vict.  L.  R.  475  (1903),  and  Barnes  &  Co.  v.  Berry,  156  Fed.  72 
(1907). 

'  But  see  Ruddy  v.  United  Association  of  Journeymen  &  Plumbers,  75 
Atl.  742  (S.  C.  of  N.  J.  Chancery,  1910). 


I204  KEMP   V.    DIVISION    XO.    241. 

As  heretofore  stated  that  highest  court  of  JMassachusetts  has 
upheld  the  contention  of  appellees.  That  court  has  also  made  rul- 
ings on  kindred  questions  which  tend  quite  strongly  to  uphold  the 
conclusion  reached  in  National  Protective  Ass'n  v.  Ctimming,  supra. 
In  Pickett  V.  J^Valsh,  sjipra,  it  was  held  that  a  strike  by  the  members 
of  a  bricklayers'  and  stonemasons'  union  in  refusing  to  lay  bricks 
or  stone  in  the  construction  of  a  certain  building  unless  also  em- 
ployed to  do  the  pointing  of  the  mortar  and  unless  other  persons  not 
bricklayers  or  stonemasons  were  discharged,  did  not  entitle  the  lat- 
ter persons,  when  discharged  by  the  contractor,  to  maintain  a  suit 
in  equity  to  enjoin  the  acts  of  the  members  of  the  union  J', 

To  hold  that  a  labor  organization  has  a  right  to  strike  because  the 
members  want  the  work  other  people  are  doing,  and  cannot  be  en- 
joined for  so  striking,  does  not  seem  to  differ  very  materially,  in 
principle,  from  the  holding  that  a  labor  organization  can  strike  be- 
cause certain  fellow-laborers  will  not  join  the  union.  The  result 
of  the  latter  strike,  if  successful,  will  be  to  give  the  work  of  the  non- 
union men  to  the  union  men.  It  would  appear,  also  to  be  drawing 
a  very  fine  distinction  to  hold  that  the  primary  object  of  a  strike  in 
such  a  case,  was  to  aid  the  members  of  the  labor  union,  while  in  the 
case  now  under  consideration  the  primary  object  was  not  to  help 
the  members. 

The  law  concerning  the  right  to  labor  or  cease  to  labor  for  an 
employer  applies  to  a  single  person  or  a  combination  of  persons.  If 
the  members  of  a  labor  organization  do  not  wish  to  work  for  the 
same  employer  with  one  or  more  other  persons,  they  certainly  have 
the  right,  under  all  authorities,  to  quit  peaceably.  Shall  the  courts 
hold  employees  liable  in  an  action  for  damages  because  they  refuse, 
on  account  of  religious  or  race  questions,  to  work  with  other  em- 
ployees? Religious  or  race  prejudice  might  be  held  to  be  based  on 
arbitrary  whim  or  caprice,  without  any  reasonable  basis  of  benefit 
to  the  competing  workmen.  The  most  that  has  ever  been  said  by  the 
courts  in  support  of  the  contention  of  appellees  is,  that  the  refusal 
to  work  with  non-union  men,  while  it  might  strengthen  the  labor 
organization,  was  a  result  too  remote  from  the  controversy  between 
the  employer  and  employees  to  be  considered  such  a  direct  benefit 
to  the  latter  as  to  justify  a  strike  on  that  account,  Here  we  have 
co-equal  rights  in  conflict, — the  right  of  certain  persons  to  be  free 
to  remain  in  their  employment  without  interference,  and  the  right 
of  the  members  of  the  labor  union  to  quit  their  employment  for 
good  cause  or  no  cause  at  all.  In  the  majority  of  cases  the  primary 
purpose  of  the  strike  is  not  to  injure  the  non-union  workmen  but 
to  benefit  organized  labor.  (18  Harvard  Law  Rev.  418,  note  3.) 
Clearly,  in  this  case  the  strike  was  not  malevolent, — that  is,  on  ac- 


^  He  also  cites  and  criticizes  Minasian  v.  Osborne,  post.  See  also,  the 
dissenting  opinion  of  Knowlton,  J.,  in  Reynolds  v.  Davis,  198  Mass.  294 
(1908),  p.  301,  intimating  that  a  strike  for  a  closed  shop,  where  its  object  is 
solely  to  obtain  a  monopoly  of  the  labor  supply  and  so  be  in  a  position  to 
bargain  advantageously  at  some  future  time  for  better  work  conditions,  is 
illegal. 


KEMP    V.    DIVISION'    XO.  24I.  I205 

count  of  ill-feeling  toward  the  non-union  workmen  as  individuals 
or  primarily  from  a  desire  to  injure  them, — because  the  union  work- 
men requested  and  demanded  that  the  non-union  workmen,  who  had 
formerly  belonged  to  the  union,  be  required  to  join  the  union  or  else 
be  discharged. 

While  it  is  sometimes  argued  that  there  may  be  a  right  to  strike 
when,  under  certain  circumstances,  a  threat  to  strike  would  be  un- 
lawful, (20  Harvard  Law  Rev.  268,)  on  reason  and  authority  the 
members  of  a  labor  organization  have  the  legal  right  peaceably  to 
threaten  to  do  that  which  they  may  lawfully  do.  National  Pro- 
tecfive  Association  v.  Cumming,  supra;  National  FireprooUng  Co. 
V.  Mason  Builders,  169  Fed.  Rep.  259:  Park  &  Sons  Co.  v.  National 
Druggists'  Ass'n,  175  N.  Y.  i.* 

In  my  judgment  union  workmen  not  bound  by  contract  who 
inform  their  employer  that  they  will  strike  unless  he  discharges  non- 
union workmen  in  the  same  line  of  employment  should  be  held  to  be 
merely  dictating  the  terms  of  their  own  employment ;  that  it  is  not 
unlawful  for  members  of  a  labor  union  to  seek  by  peaceful  methods 
to  induce  those  engaged  in  the  same  occupation  to  become  members 
of  such  union,  and  as  a  means  to  that  end  to  refuse  to  allow  union 
laborers  to  work  in  the  same  line  of  employment  in  a  place  where 
non-union  laborers  are  employed.  The  proposed  purpose  of  the 
strike  not  being  unlawful  it  necessarily  follows  that  an  injunction 
should  not  issue  as  prayed  for  in  the  bill. 

Cartwright,  J.,  Dunn,  C.  J.,  and  Hand,  J. :  The  rights  and 
duties  of  employer  and  employee,  or  their  relation  to  each  other, 
have  no  connection  with  this  case.  The  right  asserted  by  appellees 
to  be  free  from  interference  by  appellants  is  not  a  right  which  in- 


*  See  accord:  Parker,  C.  J.,  in  National  Protective  Assn.  v.  Cuinmiug, 
170  N.  Y.  315  (1902),  p.  329,  "The  defendant  associations  had  the  absolute 
right  to  threaten  to  do  what  they  had  the  right  to  do";  and  see  Hevwood  v. 
Tillson,  75  Maine  225  (1883),  per  Peter,  J.,  p.  239,  and  Appleton/C.  J.,  p. 
234.  Contra,  Freeman,  J.,  dissenting  in  Payne  v.  Western,  etc.,  R.  Co.,  13 
Lea  507  (Tenn.  1884),  holding  that  while  a  man  may  discharge  an  employee 
at  will  "without  any  reason  assigned"'  he  may  not  "hold  the  threat"  (of  dis- 
charge) over  the  employe  "in  terrorem  to  fetter  the  freedom  of  the  em- 
ployee, for  the  purpose  of  injuring  an  obnoxious  person";  and  see  the 
very  valuable  discussion  of  the  matter  by  Professor  Jeremiah  Smith,  Crucial 
Issues  in  Labor  Legislation,  20  Harv.  L.  R.,  pp.  269  to  273,  in  which  it  is  said 
that  the  view  above  expressed  in  the  principal  case  is  open  to  the  objection, 
inter  alia,  that  "it  overlooks  the  distinction  between  unconditionally  exercising 
a  right  and  offering  to  exercise  it  (or  refrain  from  exercising  it)  on  condition 
that  the  offeree  shall  take  action  which  is  intended  to  produce  (and  does  pro- 
duce) damage  to  a  third  person."  A  similar  distinction  is  recognized  in  other 
branches  of  the  law.  So  one  is  legally  free  to  prosecute  or  not  to  prosecute 
a  thief  who  has  stolen  his  goods,  but  if  he  threatens  to  prosecute  the  thief 
unless  he  return  the  goods  and  on  their  return  he  then  does  not  prosecute, 
he  is  guilty  of  compounding  a  felony.  So  one,  threatening  another  to  tell  the 
truth  about  him  and  obtaining  money  as  the  price  of  his  silence,  is  guilty  of 
blackmail,  and  see  Smith  v.  Bronilev,  2  Douglas  696  (1781),  Joannin  v.  Ogil- 
vie.  49  Minn.  564  (1892),  and  Kilpatrick  v.  Germania  Life  Ins.  Co.,  183  N. 
Y.  163  (1905),  where  money  obtained  as  the  condition  of  doing  something 
which  the  doer  was  legally  free  to  do  or  not,  as  he  pleased,  was  recovered 
back  as  monev  obtained  bv  duress. 


I206  KEMP    V.    DIVISION    XO.    24I. 

heres  in  the  Railways  Company  and  the  question  whether  a  strike 
would  be  a  wrong  to  it  is  not  involved.  The  bill  is  based  on  the 
ground  that  there  would  be  no  strike  but  that  the  appellees  would 
be  discharged.  There  is  no  reason  to  suppose  that  the  threat  would 
not  be  effective,  and  the  question  here  is  whether  the  appellants  can 
be  permitted  to  drive  the  appellees  out  of  employment  because  the> 
do  not  choose  to  belong  to  the  union  and  contribute  to  a  political 
party  or  other  purposes  of  which  they  do  not  approve. 

If  it  can  be  conceded  that  what  one  may  lawfully  do  in  pur- 
suance of  a  legal  right  two  or  more  may  lawfully  agree  to  do  jointly, 
and  the  only  difference  is  not  in  principle  but  in  the  consequences 
which  may  result  from  doing  the  act  in  combination,  certainly  no  one 
can  deny  that  if  such  an  act  as  was  threatened  in  this  case  could 
not  lawfully  be  done  by  an  individual  it  could  not  be  done  by  a  com- 
bination of  numerous  individuals  constituting  Division  241.  The 
only  dift'erence  would  be  that  a  single  individual  could  not  accom- 
plish the  injury,  while  a  combination  of  4,500  employees  would  be 
certain  to  procure  the  discharge  of  appellees." 

The  question  whether  an  individual  can  lawfully,  for  his  own 
gain,  procure  the  discharge  of  another  from  his  employment  was 
settled  by  this  court  in  London  Guarantee  Co.  v.  Horn,  206  111.  493, 
in  accordance  with  the  principles  declared  in  Doremus  y.  Henncssy. 
There  is  no  possible  ground  of  distinction  between  the  rights 
which  a  corporation,  within  its  chartered  powers,  may  exercise  and 
those  enjoyed  by  individuals,  and  it  was  there  held  that  such  an  act 
as  was  threatened  in  this  case  by  the  appellants  is  a  wrongful  and 
unlawful  act,  which  will  authorize  a  recovery  of  damages. 

There  have  been  a  few  cases  adopting  the  view  that  because 
the  simultaneous  quitting  or  withdrawing  from  work  of  a  body  of 
workmen  is  not  unlawful  in  itself  as  against  the  employer,  it  cannot 
become  unlawful  on  account  of  a  malicious  motive  to  injure  other 
workmen  in  the  exercise  of  their  right.  The  case  of  Allen  v.  Flood, 
App,  Cas.  I,  decided  by  the  House  of  Lords,  was  generally  inter- 
preted as  an  example  of  that  doctrine.  It  was  there  held  that  the 
appellant  had  violated  no  legal  right  of  the  laborers  discharged,  that 
no  unlawful  means  were  used  to  procure  their  discharge,  and  that 
appellant's  conduct  was  not  actionable,  however  malicious  or  bad  the 
motive  might  have  been. 

The  decision  in  Allen  V.  Flood  has  been  qualified,  explained, 
and,  as  generally  understood,  has  been  overruled  in  England.  In 
Qninn  v.  Leathern,  (1901)  A.  C.  495,  its  effect  was  explained  away 
as  being  a  case  where  there  was  no  combination  but  only  an  act  by 
the  defendant  expressing  his  own  views,  and  as  holding  that  as  an 
act  which  does  not  amount  to  a  legal  injury  cannot  be  actionable 
on  account  of  a  bad  motive.  In  Giblan  v.  National  Amalgamated 
Laborers'  Union,  (1903)  2  K.  B.  Div.  600,  the  secretary  of  a  trade 
union  notified  the  foreman  of  plaintiff's  employer  that  other  men 


•  See  Romer,  J.,  in  Cihlan   v.  National  Amalgamated  Laborers'   Union. 
L.  R.  1903,  2  K.  B.  600. 


KEMP   V.    DIVISIOX    XO.    24I.  120/ 

would  be  called  out  on  a  strike  unless  the  plaintiff  was  discharged. 
The  object  was  to  enforce  payment  of  a  debt  due  to  the  union,  which 
would  be  an  advantage  to  the  union  and  increase  its  resources  and 
be  a  benefit  more  direct  and  immediate  than  increasing  membership, 
and  it  was  held  that  the  discharge  of  the  plaintiff  so  procured  was 
unlawful.  The  case  of  National  Protective  Ass'n  v.  Ciimming,  170 
X.  Y.  315,  was  a  contest  between  two  rival  labor  organizations,  one 
of  which  had  been  organized  by  a  laborer  who  had  failed  to  pass 
the  examination  required  by  the  other  organization.  The  qualifica- 
tions and  standard  of  admission  of  that  organization  were  lower 
than  those  of  the  other,  and  the  objection  was  to  working  with  men 
not  qualified  according  to  the  standard  of  the  objecting  organization. 
The  court  was  divided,  and  a  great  deal  was  said  in  the  majority 
opinion  which  had  only  remote  connection  with  the  question  in- 
volved and  which  has  not  met  with  the  approval  of  the  courts  or 
law  writers  generally.  There  is  no  question,  here,  of  competency, 
fitness,  danger  to  other  employees,  race,  color,  religion,  or  any  other 
thing  that  would  make  association  unpleasant  or  objectionable.  The 
question  in  this  case  was  not  involved  in  that  one,  but  the  decision 
of  the  same  court  in  Curran  v.  Galen,  152  N.  Y.  33,  was  upon  sub- 
stantially the  same  question  here  in  issue.  That  was  the  case  of  an 
individual  laborer,  and  the  court  held  that  if  the  purpose  of  an  or- 
ganization was  to  coerce  other  workingmen  to  become  members 
under  the  penalty  of  loss  of  employment  the  purpose  was  unlawful. 
The  right  of  eyery  laborer  to  dispose  of  his  labor  as  he  may 
choose  for  the  support  of  himself  and  those  dependent  upon  him  is 
as  sacred  as  the  right  to  carry  on  any  lawful  business  or  any  other 
right  of  the  citizen.  Governments  and  courts  would  be  useless  if 
they  fail  to  protect  the  laborer  in  the  enjoyment  of  such  a  right.  It 
can  only  lawfully  be  interfered  with  by  one  in  the  exercise  of  an 
equal  or  superior  right,  and  that  is  the  ground  upon  which  the  right 
to  obtain  the  place  of  another  in  direct  and  lawful  competition  is 
sustained.  The  right  of  a  labor  organization  to  enforce  a  closed 
shop  for  the  mere  purpose  of  strengthening  the  labor  organization 
in  future  contests  with  the  employer  is  not  competition,  and  is  not 
of  the  same  character  or  equal  to  the  right  of  the  individual  to  dis- 
pose of  his  labor  at  his  own  will.  There  is  not  the  slightest  reason 
to  suppose  that  the  Railways  Company  would  permit  a  strike  to  be 
called,  with  the  consequent  disastrous  effects  to  its  business,  for  the 
sake  of  retaining  the  appellees  in  its  employment.  They  would 
undoubtedly  be  discharged,  and  the  accomplishment  of  that  result 
for  the  purpose  of  gaining  the  remote  and  indirect  advantage  to 
Division  241  would  give  a  right  of  action  to  the  appellees  for  the 
consequent  damage.  The  case  is  therefore  one  where  a  court  of 
equity  ought  to  interpose  to  prevent  the  threatened  danger,  and  in 
our  opinion  the  judgment  of  the  Appellate  Court  should  be  affirmed. 


I208  SCIIWARCZ    Z'.    IXTERXATIOXAL    &C.    UNION. 


SCHWARCZ  i:  IXTERXATIOXAL  LADIES'  GARMENT 
WORKERS'  UNION 

Supreme   Court   of  New   York,  1910.     124  .V.    V.   Supplement,  968. 

GoFF,  J.  By  its  affirmance  (in  198  N.  Y.  587),  of  the  decision 
of  the  Appellate  Division  in  McCord  v.  Thompson-Starrett  Co.,  129 
App.  Div.  130,  113  N.  Y.  Supp.  385,  the  Court  of  Appeals  has  de- 
clared that  it  is  against  the  pulDlic  policy  of  the  state  for  employers 
who  control  practically  the  whole  trade  in  a  community  to  combine 
for  the  purpose  of  compelling  workmen  to  join  a  particular  union  as 
a  condition  of  employment.  The  result  is  a  development  of  the  doc- 
trine enunciated  in  Curran  x.  Galen,  152  N.  Y.  33,  46  N.  E.  297,  37 
L.  R.  A.  802,  57  Am.  St.  Rep.  496,  in  which  case  the  court  said : 

"Public  policy  and  the  interests  of  society  favor  the  utmost 
freedom  in  the  citizen  to  pursue  his  lawful  trade  or  calling,  and  if 
the  purpose  of  an  organization  or  combination  of  workingmen  be  to 
hamper  or  restrict  that  freedom  and,  through  contracts  or  arrange- 
ments with  the  employers,  to  coerce  other  workingmen  to  become 
members  of  the  organization  and  to  come  under  its  rules  and  condi- 
tions under  the  penalty  of  the  loss  of  their  position,  and  of  depriva- 
tion of  employment,  then  that  purpose  seems  clearly  unlawful  and 
militates  against  the  spirit  of  our  government,  and  the  nature  of  our 
institutions." 

This  language  was  quoted  with  approval  by  Ingraham,  J.,  in  his 
dissenting  opinion  in  the  McCord  Case,  but  his  dissent  was  not  on 
the  law  as  expounded,  but  on  the  question  of  the  poAver  of  the  board 
of  governors  of  defendant  association  to  issue  an  order  requiring  its 
members  not  to  employ  workmen  who  refused  to  join.  "Such  an 
agreement,"  said  the  court  in  Jacobs  v.  Cohen,  183  N.  Y.  207,  76  N. 
E.  5,  2  L.  R.  A.  (N.  S.)  292,  III  Am.  St.  Rep.  730,  "when  partici- 
pated in  by  all  or  by  a  large  proportion  of  employers,  becomes  op- 
pressive and  contrary  to  public  policy,  because  it  operates  generally 
upon  the  craftsmen  in  the  trade  and  imposes  upon  them  as  a  pen- 
alty for  refusing  to  join  the  favored  union  the  practical  impossibility 
of  obtaining  employment  at  their  trade  and  thereby  gaining  a  liveli- 
hood." 

If  the  rule  laid  down  in  the  McCord  Case  be  the  law,  and  it 
must  be  accepted  as  such,  being  the  latest  expression  of  the  Court 
of  Appeals,  it  must  be  applicable  to  workmen  as  well  as  to  employ- 
ers. It  would  be  repugnant  to  reason  to  hold  that  it  applies  to  one 
and  not  to  the  other.  What  the  employers  may  not  do  the  workmen 
may  not  do.  If  a  combination  of  one  to  refuse  employment  except 
on  condition  of  joining  a  union  be  against  public  policy,  a  combina- 
tion of  the  other  to  cause  refusal  of  employment  except  on  condi- 
tion of  joining  a  union  is  alike  against  public  policy.  This  refusal 
was  sought  to  be  caused  by  the  demand  of  the  defendant  union  made 
upon  all  the  employers  in  the  trade  that  the  non-union  men  already 
employed  should  be  discharged  in  two  weeks  unless  they  joined  the 
union.     A  discharge  under  such  circumstances  would  be  a  refusal 


I 


SCHWARCZ    V.    INTERXATIOXAL    &C.    UNION.  I2O9 

to  employ.  Appropriate  here  is  the  method  of  reasoning  employed 
by  Ward,  J.,  in  Irving  v.  Joint  District  Council  (C.  C.)  i8o  Fed.  896: 

"To  take  the  converse  of  the  proposition.  Will  the  defendants 
admit  that  employers  may  combine  to  prevent  any  employer  from 
using  union  labor?  May  the  employers  agree  not  to  sell  to  or  con- 
tract with  any  one  who  deals  with  an  employer  who  uses  union 
labor?  Either  of  these  propositions  is  destructive  of  the  right  of 
free  men  to  labor  for  or  to  employ  the  labor  of  any  one  the  laborer 
or  the  employer  wishes." 

"Whatever  one  man  may  do  alone,"  said  Vann,  J.,  in  the  Na- 
tional Protective  Ass'n  v.  Cumming,  170  N,  Y.  315,  321,  338,  63  N, 
-•  369,  376,  58  L.  R.  A.  135,  88  Am.  St.  Rep.  648,  "he  may  do  in 
combination  with  others,  provided  they  have  no  unlawful  object  in 
view,"  a  proposition  which  was  assumed  to  be  correct  by  Parker, 
C.  J.,  writing  the  prevailing  opinion.  That  the  purpose  of  a  combina- 
tion is  material  in  considering  its  legality  has  been  held  in  Cnrran 
V.  Galen,  supra;  Beattie  v.  Callanan,  82  App.  Div.  y,  81  N.  Y.  Supp. 
413,  and  Schlang  v.  Ladies'  Waist  Makers'  Union,  67  Misc.  Rep. 
221,  124  N.  Y.  Supp.  289. 

That  the  purpose  to  be  considered  is  its  immediate,  not  its  ulte- 
rior, purpose,  was  held  in  Mills  v.  U.  S.  Printing  Co.,  99  App.  Div. 
605,  631,  91  N,  Y.  Supp.  185.  In  McCord  v.  Thompson-Starrett 
Co.,  supra,  the  illegal  purpose  of  the  combination  to  drive  workmen 
into  a  particular  union  invalidated  a  bond  given  by  one  of  its  mem- 
bers to  secure  obedience  to  orders  of  the  association.  There  may 
have  been  an  ulterior  purpose  of  the  combination  to  protect  its  mem- 
bers against  blackmail  and  extortion.  That  was  a  legal  purpose,  but 
did  not  validate  the  bond  in  suit. 

The  primary  purpose  of  this  suit  is  not  to  better  the  condition 
of  the  workmen,  but  is  to  deprive  ether  men  of  the  opportunity  to 
exercise  their  right  to  work  and  to  drive  them  from  an  industry  in 
which,  by  labor,  they  may  have  acquired  skill,  and  which  they  have 
a  right  to  pursue  to  gain  a  livelihood,  without  being  subjected  to  the 
doing  of  things  which  may  be  disagreeable  or  repugnant.  That  this 
is  the  motive  which  animates  the  combination  of  defendants  is 
clear  from  the  correspondence,  the  negotiations,  the  conferences, 
and  the  acts  and  conduct  disclosed  in  papers  before  the  court.  At 
the  conference,  the  manufacturers  conceded  all  demands  of  the 
unions,  except  that  they  proposed  to  arbitrate  the  questions  of  wages 
and  Saturday  half  holidays  throughout  the  year  and  except  that 
they  refused  to  concede  a  closed  shop.  - 'Their  offer  of  arbitration 
was  refused.  Some  10  days  after  negotiations  had  been  discon- 
tinued, counsel  for  the  unions  made  a  proposition  to  one  of  the  man- 
ufacturers, looking  towards  a  settlement  of  the  whole  controversy, 
as  follows : 

"The  association  is  to  obligate  each  of  its  members  to  employ 
union  men  as  long  as  the  union  will  be  able  to  furnish  union  men 
who  can  do  the  Vv^ork  properly.  Within  two  weeks  the  non-union 
men  shall  join  the  union.  ...  I  am  certain  an  agreement  will  be 
reached  on  all  other  matters." 


1 2 10  PICKETT   Z'.    WALSH. 

In  insisting  upon  the  closed  shop  it  was  doubtless  the  intention 
of  the  union  to  get  the  whip  hand  of  the  manufacturers  by  perfect- 
ing a  powerful  organization.  That  agency  would  thereafter  insure 
respect  for  their  demands  for  a  continuance  of  the  wages  and  hours 
which  the  manufacturers  are  now  ready  to  concede,  but  here,  as  in 
the  INIcCord  Case,  the  ulterior  purpose  of  the  union  is  immaterial 
if  the  immediate  purpose  is  unlawful.  That  it  is  unlawful  has  been 
shown. 

^  The  distinction  between  the  present  case  and  National  Pro- 
tective Association  v.  Cumming,  supra,  is  twofold.  In  the  National 
Protective  Association  Case  there  was  no  proof  of  illegal  motive. 
It  had  not  been  found  at  Special  Term  and  the  Court  of  Appeals 
could  not  infer  it,  while  here  the  motive  is  found  to  be  illegal.  It  is 
distinguishable  again  in  that  there  was  no  wide  combination  to  drive 
non-union  men  out  of  their  trade  in  a  community.  Here  the  com- 
bination is  directed  against  every  non-union  man  in  the  trade  in  the 
borough  of  Manhattan.^ 


PICKETT  V.  WALSH. 
Supreme  Judicial  Court  of  Massachusetts,  1906.     192  Mass.  572. 

LoRiNG,  J.  This  suit  in  equity  comes  before  us  on  an  appeal 
from  a  final  decree. 

There  seems  to  be  three  causes  of  action  upheld  by  the  decree. 

Finally,  the  plaintiffs  sought  to  be  protected  against  a  strike  by 
the  defendants  in  order  to  get  the  work  of  pointing  for  the  members 
of  their  unions.^ 

We  are  brought  to  the  question  of  the  legality  of  the  strike  in 
the  case  at  bar,  namely,  a  strike  of  bricklayers  and  masons  to  get 
the  work  of  pointing,  or,  to  put  it  more  accurately,  a  combination 
by  the  defendants,  who  are  bricklayers  and  masons,  to  refuse  to  lay 
bricks  and  stone  where  the  pointing  of  them  is  given  to  others.  The 
defendants  in  effect  say  we  want  the  work  of  pointing  the  bricks 
and  stone  laid  by  us,  and  you  must  give  us  all  or  none  of  the  work. 

The  case  is  one  of  competition  between  the  defendant  unions 
and  the  individual  plaintiffs  for  the  work  of  pointing.  The  work 
of  pointing  for  which  these  two  sets  of  workmen  are  competing  is 
work  which  the  contractors  are  obliged  to  have.  One  peculiarity  of 
the  case  therefore  is  that  the  fight  here  is  necessarily  a  triangular 
one.    It  necessarily  involves  the  two  sets  of  competing  workmen  and 


*  Compare  also  Ruddy  v.  United  Assn.,  75  Atl.  742  (S.  C.  N.  J.  C.  H. 
1910)    and  Graham  v.  Knott,   14  Brit.   Columbia,  97    (1908). 

In  man\^  cases  the  court  regards  as  important  if  not  controlling  the  fact 
that  the  object  of  the  defendants  is  to  obtain  a  monopoly  of  the  labor  market 
or  of  the  supply  of  the  commodity  dealt  in.  Berry  v.  Donovan,  188  Mass.  353 
(1905).  Reynolds  v.  Davis,  198  Mass.  294  (1908)  ;  and  see  Brown  &  Allen  v. 
Jacobs'  Pharmacy,  post,  and  Gatzow  v.  Buening,  cited  in  the  notes  thereto. 

^  Only  so  much  of  the  opinion  is  given  as  concerns  this,  the  third  ground 
of  action  upon  whi'  h  the  third  clause  of  the  decree  was  based. 


PICKETT    r.    WALSH.  121 1 

the  contractor,  and  is  not  confined  to  the  two  parties  to  the  contract, 
as  is  the  case  where  workmen  strike  to  get  better  wages  from  their 
employer  or  other  conditions  which  are  better  for  them.  In  this  re- 
spect the  case  is  Hke  Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D. 
^598 ;  S.  C.  on  appeal  ( 1892)  A.  C.  25. 

The  right  which  the  defendant  unions  claim  to  exercise  in  car- 
rying their  point  in  the  course  of  this  competition  is  a  trade  advan- 
tage, namely,  that  they  have  labor  which  the  contractors  want,  or, 
if  you  please,  cannot  get  elsewhere ;  and  they  insist  upon  using  this 
trade  advantage  to  get  additional  work,  namely,  the  work  of  point- 
ing the  bricks  and  stone  which  they  lay.  It  is  somewhat  like  the 
advantage  which  the  owner  of  back  land  has  when  he  has  bought 
the  front  lot.  He  is  not  bound  to  sell  them  separately.^  To  be  sure 
the  right  of  an  individual  owner  to  sell  both  or  none  is  not  decisive 
of  the  right  of  a  labor  union  to  combine  to  refuse  to  lay  bricks  or 
stone  unless  they  are  given  the  job  of  pointing  the  bricks  laid  by 
them.  There  are  things  which  an  individual  can  do  which  a  com- 
bination of  individuals  cannot  do.  But  having  regard  to  the  right 
on  which  the  defendants'  organization  as  a  labor  union  rests,  the 
correlative  duty  owed  by  it  to  others,  and  the  limitation  of  the  de- 
fendants' rights  coming  from  the  increased  power  of  organization, 
we  are  of  opinion  that  it  was  within  the  rights  of  these  unions  to 
compete  for  the  work  of  doing  the  pointing  and,  in  the  exercise  of 
their  right  of  competition,  to  refuse  to  lay  bricks  and  set  stone  unless 
they  were  given  the  work  of  pointing  them  when  laid. 

The  result  is  harsh  on  the  contractors,  who  prefer  to  give  the 
work  to  the  pointers  because  they  get  from  the  pointers  better  work 
with  less  liability  at  a  smaller  cost.  Again,  so  far  as  the  pointers 
(who  cannot  lay  brick  or  stone)  are  concerned,  the  result  is  dis- 
astrous. But  all  that  the  labor  unions  have  done  is  to  say  you  must 
employ  us  for  all  the  work  or  none  of  it.  They  have  not  said  that 
if  you  employ  the  pointers  you  must  pay  us  a  fine,  as  they  did  in 
Carezi'  v.  Rutherford,  106  Mass.  i.  They  have  not  undertaken  to 
forbid  the  contractors  employing  pointers,  as  they  did  in  Plant  v. 
Woods,  176  Mass.  492.  So  far  as  the  labor  unions  are  concerned 
the  contractors  can  employ  pointers  if  they  choose,  but  if  the  con- 
tractors choose  to  give  the  work  of  pointing  the  bricks  and  stones 
to  others  the  unions  take  the  stand  that  the  contractors  will  have  to 
get  some  one  else  to  lay  them.  The  efi^ect  of  this  in  the  case  at  bar 
appears  to  be  that  the  contractors  are  forced  against  their  will  to 
give  the  work  of  pointing  to  the  masons  and  bricklayers.-  But  the 
fact  that  the  contractors  are  forced  to  do  what  they  do  not  want  to 
do  is  not  decisive  of  the  legality  of  the  labor  union's  acts.  That  is 
true  wherever  a  strike  is  successful.  The  contractors  doubtles.'- 
would  have  liked  it  better  if  there  had  been  no  competition  between 
the  bricklayers'  and  masons'  unions  on  the  one  hand  and  the  indi- 
vidual pointers  on  the  other  hand.    But  there  is  competition.    There 


"See  somewhat  similar  cases  put  bv  Brannon,  J.,  in  Transl-ortation  Co.  v. 
Standard  Oil  Co.,  50  W.  Va.  611  (1902),  p.  619. 


121 2  PICKETT    1\    WALSH. 

being  competition,  they  prefer  the  course  they  have  taken.  Tliey 
prefer  to  give  all  the  work  to  the  unions  rather  than  get  non-union 
men  to  lay  bricks  and  stone  to  be  pointed  by  the  plaintiffs. 

Further,  the  effect  of  complying  with  the  labor  unions'  demands 
apparently  will  be  the  destruction  of  the  plaintiffs'  business.  But 
the  fact  that  the  business  of  a  plaintiff  is  destroyed  by  the  acts  of 
the  defendants  done  in  pursuance  of  their  right  of  competition  is 
not  decisive  of  the  illegality  of  the  acts.  It  was  well  said  by  Ham- 
mond, J.  in  Martell  v.  White,  185  Alass.  255,  260,  in  regard  to  the 
right  of  a  citizen  to  pursue  his  business  without  interference  by  a 
combination  to  destroy  it :  "Speaking  generally,  however,  competi- 
tion in  business  is  permitted,  although  frequently  disastrous  to  those 
engaged  in  it.  It  is  alwavs  selfish,  often  sharp,  and  sometimes 
deadly." 

We  cannot  say  on  the  evidence  that  pointing  is  something  for- 
eign to  the  w^ork  of  a  bricklayer  or  a  stonemason  and  therefore 
something  which  a  union  of  bricklayers  and  stonemasons  have  no 
right  to  compete  for  or  insist  upon.  On  the  contrary  the  evidence 
shows  that  in  Boston  the  pointing  is  done  to  some  extent  by  brick- 
layers and  stonemasons,  and  there  is  no  evidence  that  the  trade  of 
pointers  exists  outside  that  city. 

The  protest  of  the  defendant  unions  against  the  plaintiffs  being 
allowed  to  organize  a  pointers'  union  is  not  an  act  of  oppression.  It 
is  not  like  the  refusal  of  the  union  in  Oiiinn  v.  Leathern,  (1901)  A. 
C.  495,  to  work  with  the  non-union  men  or  to  admit  the  non-union 
men  to  their  union.  The  defendants'  unions  are  not  shown  to  be 
unwilling  to  admit  the  plaintiffs  to  membership  if  they  are  qualified 
as  bricklayers  or  stonemasons.^  But  the  difficulty  is  that  the  plain- 
tiffs are  not  so  qualified.  They  are  not  bricklayers  or  masons.  The 
unions  have  a  right  to  determine  what  kind  of  workmen  shall  com- 
pose the  union,  and  to  insist  that  pointing  shall  not  be  a  separate 
trade  so  far  as  union  work  is  concerned.  They  have  not  undertaken 
to  say  that  the  contractors  shall  not  treat  the  two  trades  as  distinct. 
"What  they  insist  upon  is  that  if  the  contractors  employ  them  they 
shall  employ  them  to  do  both  kinds  of  work. 

The  application  of  the  right  of  the  defendant  unions,  who  are 
composed  of  bricklayers  and  stonemasons,  to  compete  with  the  in- 
dividual plaintiffs,  who  can  do  nothing  but  pointing  (as  we  have 
said,)  is  in  the  case  at  bar  disastrous  to  the  pointers  and  hard  on 
the  contractors.  But  this  is  not  the  first  case  where  the  exercise  of 
the  right  of  competition  ends  in  such  a  result.  The  case  at  bar  is 
an  instance  where  the  evils  which  are  or  may  be  incident  to  compe- 
tition bear  ver^  harshly  on  those  interested,  but  in  spite  of  such  evils 
competition  is  necessary  to  the  welfare  of  the  community. 

"  The  evidence  tended  to  show  that  their  application  for  a  charter  for  a 
"pointers"  union  was  refused  by  the  Boston  Trade  Council  of  the  American 
Federation  of  Labor  on  the  ground  that  pointing  was  properly  a  part  of  the 
bricklayers'  and  masons'  trade  and  that  one  at  least  of  the  bricklayers'  unionj^ 
opposed  the  application. 


WILLCUTT    &    SONS    CO.    V.    J.    J.    DRISCOLL.  121 3 

It  follows  that  the  third  clause  of  the  decree  must  be  stricken 


out. 


WILLCUTT  &  SOXS  CO.  v.  J.  J.  DRISCOLL         ^^ 

Supreme  Judicial  Court  of  Massachusetts,  1908.     200  Mass.  110. 

Hammond,  J.  We  are  of  opinion  therefore  that  this  strike 
must  be  regarded  as  simply  a  strike  foj-  higher  wages  and  a  shorter 
day.  _It  was  not  merely  a  sympathetic  strike,  as  in  Pickett  v.  Walsh, 
192  ]\Iass.  572,  587,  or  one  whose  immediate  object  was  only  re- 
motely connected  with  the  ultimate  object  of  the  strikers,  as  in  Plant 
V.  Woods,  176  Mass.  492.  It  was  a  direct  strike  by  the  defendants 
against  the  other  party  to  the  dispute,  instituted  for  the  protection 
and  furtherance  of  the  interests  of  the  defendants  in  matters  in 
which  both  parties  were  directly  interested  and  as  to  which  each 
party  had  the  right,  within  all  lawful  limits,  to  determine  its  own 
course.  Such  a  strike  must  be  treated  as  a  justifiable  strike  so  far 
as  respects  its  ultimate  object. 

But  however  justifiable  or  even  laudable  may  be  the  ultimate 
object  of  a  strike,  unlawful  means  must  not  be  employed  in  carry- 
ing it  on ;  and  it  is  contended  by  the  plaintiff  that  the  use  of  fines 
and  threats  of  fines,  under  the  circumstances  disclosed  in  the  record, 
are  unlawful. 

The  question  how  far  the  imposition  of  fines  by  an  organiza- 
tion upon  its  members  where  the  eft'ect  is  to  injure  a  third  party  is 
justifiable,  was  considered  in  this  court  in  Mart  ell  v.  White,  185 
Mass.  255  ;  and  it  was  there  adjudged  that  the  imposition  of  such  a 
fine  by  which  members  of  the  organization  were  coerced  into  refus- 
ing to  trade  with  the  plaintiff,  not  a  member,  to  his  great  damage, 
was  inconsistent  with  the  ground  upon  which  the  right  to  competi- 
tion in  trade  is  based,  and  as  against  him  was  not  justifiable. 

That  principle,  if  applicable  to  the  facts  of  this  case,  is  decisive. 
The  majority  of  the  court  are  of  the  opinion  that  it  is  applicable 

'In  Reynolds  v.  Davis,  198  ^lass.  294  (1908),  Knowlton,  J.,  in  hi.s  dis- 
senting opinion  intimates  that  a  strike  for  a  closed  shop  is  lawful  if  there 
is  not  work  enough  for  all  union  men  desiring  employment,  if  non-union 
men  are  employed. 

In  National  FircprooUng  Co.  v.  Mason  Builders'  Assn.,  169  Fed.  259 
(1909),  an  agreement  was  made  between  defendants,  an  association,  which 
comprised  a  minority  of  the  master  builders  of  New  York  City,  and  the 
various  bricklayers'  unions,  including  practically  all  the  bricklayers  therein, 
that  the  master  builders  should  not  sub-let  interior  work,  but  should  give 
preference  in  such  work  to  the  men  employed  on  the  walls  and  providing  that 
no  union  man  should  be  allowed  to  work  for  a  builder  not  accepting  these 
regulations,  which,  however,  any  builder,  whether  a  member  of  the  associa- 
tion or  not,  could  accept.  The  plaintiff  having  obtained  a  contract  under  the 
George  Fuller  Co.  to  do  the  fireprooting  in  a  certain  building,  the  defendants 
notified  them  of  the  above  regulations  and  then  struck  work,  thus  forcing  the 
plaintiff  to  cancel  his  contract.  It  was  held  that  the  object  of  these  provisions 
was  to  advance  the  interests  of  the  defendant  bricklayers  and  not  .solely  to 
injure  the  plaintiff,  and  that  they  had  the  right  to  enforce  obedience  thereto 
by  strike. 


I2I4  WILLCUTT    &    SONS    CO.    7'.    J.    J.    DRISCOLL. 

anci  hence  that  there  should  be  a  decree  for  the  plaintifif  enjoining 
intimidation  or  coercion  by  fines. 

Under  ordinary  circumstances  this  opinion  would  end  here. 
But  inasmuch  as  a  minority  of  the  court  still  think  that  the  principle 
laid  down  in  Martell  v.  White,  with  reference  to  intimidation  by 
fines  imposed  by  an  organization  upon  its  members,  is  not  correct, 
and  also,  perhaps,  that,  even  if  correct,  it  is  not  applicable  to  the 
facts  of  this  case,  and  are  unwilling  to  accept  that  principle  as  law 
in  this  Commonwealth  notwithstanding  the  authority  of  that  case, 
it  may  be  well  to  say  something  in  addition  to  what  was  there  said. 
We  are  also  somewhat  influenced  to  take  this  action  by  reason  of 
the  importance  of  the  question  and  its  relation  to  a  part  of  the  law 
still  in  the  nebulous  but  clearing  stage. 

Before  entering  more  fully  upon  the  discussion  it  is  well  to  get 
a  clear  conception  of  what  the  case  is.  To  begin  with,  it  is  not  a 
contest  between  the  members  of  two  competing  labor  unions,  as  was 
in  Plant  v.  Woods,  1^6  Alass.  492,  nor  is  it  a  conflict  between  an 
organization  and  one  of  its  members  in  a  matter  in  which  no  third 
party  is  interested.  Neither  does  the  plaintifif  corporation  contend 
that  it  has  any  right  to  compel  the  intimidated  workmen  to  enter  its 
employ.  Nor  is  it  seeking,  in  behalf  of  a  member  of  a  union,  to  en- 
force or  defend  the  right  of  such  member  to  be  free  from  a  fine  or 
threat  of  a  fine.  The  plaintifif  has  no  concern  with  the  imposition 
of  fines  by  a  union  upon  its  members  unless,  and  only  so  far  as,  such 
an  imposition  is  in  violation  of  a  right  of  the  plaintifif.  Even  if  the 
fine  be  illegal  the  plaintifif  has  no  standing  in  court  to  explain  unless 
some  one  of  its  rights  is  invaded  to  its  damage.  In  a  word,  the  case 
is  not  between  the  party  imposing  the  fine  and  the  person  fined,  nor 
between  the  persons  fined  as  such  and  a  third  party  who  sufifers,  but 
on  the  contrary  it  is  between  such  third  party  and  the  party  impos- 
ing the  fine.  If  it  were  only  between  the  person  fined  and  the  party 
imposing  the  fiUe,  then  with  some  degree  of  plausibility  it  might  be 
said  that  the  former  had  no  right  to  complain,  or  at  least  had  waived 
that  right ;  but  it  is  manifest  that  neither  of  the  immediate  parties 
to  the  fine  can,  either  by  an  agreement  among  themselves  or  by 
w^aiver,  justify  the  invasion  of  the  right  of  a  third  party,  if  any  he 
has,  to  object  to  it.^ 

What  is  the  complaint  of  the  plaintift'?  It  is  a  corporation  en- 
gaged in  the  construction  of  buildings  and  employing  a  number  of 
men.  Its  men  left  its  employ  on  a  strike.  To  keep  them  away  the 
defendants  threatened  with  fines  such  as  were  members  of  the 
unions,  and  by  that  means  kept  them  away  from  the  plaintifif  when 


^"An  interference  with  the  right  of  a  third  party  can  not  be  justified  upon 
the  ground  that  the  intruder  is  acting  in  accordance  with  an  agreement 
l;etween  him  and  some  other  person.  In  a  word,  so  long  as  a  fine  is  imposed 
for  the  guidance  of  members  in  matters  in  which  outside  parties  have  no 
interest,  or  in  which  there  is  no  violation  of  a  right  of  an  outside  party, 
then  no  such  party  can  complain.  But  when  the  right  of  such  a  party  is 
invaded,  it  is  no  defense,  either  to  the  person  fined  or  to  those  who  liave 
imposed  the  fine,  that  the  invasive  act  was  done  in  accordance  with  xhfc 
by-laws  of  an  association." 


WILLCUTT    &    SONS    CO.    V.    J.    J.    DRISCOLL.  121 5 

Otherwise  they  would  have  stayed ; — all  to  the  great  damage  of  the 
plaintiff.  Shortly  stated  the  case  is  this:  The  plaintiff's  men  are 
being  coerced  by  threats  of  a  fine  to  leave  its  employ,  greatly  to  its 
injury,  the  fines  to  be  levied  in  accordance  with  the  by-laws  of  a  vol- 
untary association  of  which  the  proposed  victims  are  members. 
This  injury  to  the  plaintiff  is  intended  by  the  defendants.  Has  the 
plaintiff  any  standing  in  equity  to  an  injunction  against  the  infliction 
of  such  injury? 

The  right  of  an  employer  to  free  labor  is  subject  to  the  right 
of  the  laborer  to  hamper  him  by  many  expedients  short  of  fraud  or 
intimidation  amounting  to  injury  to  the  person  or  property  of  those 
who  desire  to  enter  his  employ,  or  threats  of  such  injury.  For  in- 
stance, persuasion  not  amounting  to  such  intimidation  is  lawful,  and 
perhaps  the  same  may  be  said  of  social  pressure  even  when  carried 
to  the  extent  of  social  ostracism,  not  including  however  any  threat 
in  a  business  point  of  view.  .  See  Vegelahn  v.  Guntner,  167  Mass. 
92;  Jersey  City  Printing  Co.  v.  Cassidy,  63  N.  J.  Eq.  759,  769;  20 
Harvard  Law  Review,  267.  Social  rights  and  privileges  must  take 
care  of  themselves.  The  law  cannot  prescribe  with  whom  one  shall 
shake  hands  or  associate  as  a  friend. 

In  the  case  before  us,  standing  opposed  to  each  other,  are  these 
two  rights :  the  right  of  the  employer  to  a  free  labor  market,  and  the 
right  of  the  striking  employees  in  their  strife  with  him  to  impair 
that  freedom ;  and  the  crucial  question  is,  how  far  can  the  latter  go  ? 
On  which  side  of  the  line  shall  stand  the  matter  of  coercion  by  fines 
imposed  by  a  union  upon  its  members  to  impair  that  freedom.  Is 
the  employer's  right  to  a  free  market  subject  to  this  system  of  mu- 
tual intimidation  and  coercion  by  fines,  or  is  the  right  to  establish 
such  a  system  subject  to  the  right  of  the  employer  to  a  free  market? 
If  the  employer's  right  is  not  subject  to  this  method  of  intimidation, 
then  of  course  as  against  him  it  is  unlawful.  If  it  is  subject  to  it, 
then  he  cannot  complain,  no  matter  how  severe  the  blow. 

So  far  as  concerns  the  law  in  this  Commonwealth  at  least,  some 
things  seem  to  be  settled.  It  is  settled  that  the  flow  of  labor  to  the 
employer  cannot  be  obstructed  by  intimidation  or  corecion  produced 
by  means  of  injury  to  person  or  property,  or  by  threats  of  such  in- 
quiry.   Vegelahn  v.  Guntner,  167  Mass.  92. 

There  can  be  no  doubt  that  finding  is  one  method  of  injuring  a 
man  in  his  estate,  and  that  a  threat  to  fine  is  a  threat  of  such  an 
injury. 

It  is  urged  however  that  although  this  method  of  intimidation 
is  generally  an  invasion  of  the  employer's  right  to  a  free  market  and 
therefore  illegal,  yet  when  the  intimidation  is  exerted  by  a  union 
upon  its  members  in  accordance  with  its  by-laws  in  a  strike  whose 
object  is  legal,  it  is  justifiable  and  legal.-    To  this  the  obvious  reply 

"  Strike  benefits  and  transportation  to  other  places  where  work  has- 
been  or  can  be  obtained,  given  by  a  union  in  accordance  with  its  pre-ex- 
isting rules,  to  its  members,  is  not  an  improper  inducement,  Evcrett'lVnddey 
Co.  V.  Richmond  Typographical  Union.  105  Va.  188  (1908),  in  which  it  is 
also  held  that  it  is  not  unlawful  to  hold  out  such  advantages  as  an  agree- 


I2l6  WILLCUTT    &    SONS    CO.    V.    J.    J.    DRISCOLL. 

is  that  the  rule  of  freedom  to  contract  is  founded  upon  principles 
of  public  policy,  that  each  party  to  a  contract  is  interested  in  the 
freedom  of  the  other  party,  that  it  can  make  no  difference  to  the^ 
public  or  to  the  employer  (who  in  the  present  case  is  the  other 
party),  that  the  person  intimidated  is  or  is  not  a  member  of  the 
society  intimidating.  In  either  case  the  injury  is  the  same  and  is 
from  the  same  cause,  namely,  intimidation.  The  workman  is  no 
longer  free.  In  Longshore  Pri)itiiig  Co.  v.  Hozvcll,  26  Ore.  527,  the 
court,  after  speaking  of  the  general  right  of  labor  unions  to  make 
rules,  proceeds  thus :  "It  must  be  understood,  however,  that  these 
associations,  like  other  voluntary  societies,  must  depend  for  their 

I  membership  upon  the  free  and  untrammelled  choice  of  each  individ 
ual  member.     No  resort  can  be  had  to  compulsory  methods  of  any 

\jiind  to  increase  or  keep  up  or  maintain  such  membership.  Nor  is  it 
permissible  for  associations  of  this  kind  to  enforce  the  observance 
of  their  laws,  rules  and  regulations  through  violence,  threats  or  in- 
^imidatinn    or  to  employ  any  methods  that  would  induce  intimida- 

Itioii  or  deprive  persons  of  perfect  freedom  of  action." 

The  keynote  on  this  matter  is  struck  in  Booth  v.  Burgess,  65 
Atl.  Rep.  226,  233,  in  the  following  language :  "No  surrender  of  lib- 
erty or  voluntary  agreement  to  abide  by  by-laws  on  the  part  of  the 
employees  who  are  first  coerced,  made  by  them  when  they  enter  their 
labor  unions,  can  .  .  .  aft'ect  the  right  of  the  complainant  to  a 
free  market,  which  right  he  will  enjoy  for  all  it  may  be  worth  if 
these  employees  are  permitted  to  exercise  their  liberty.  The  em- 
ployees may  be  able  to  surrender  their  own  right,  but  they  certainly 
cannot  surrender  the  rights  of  other  parties,''  citing  Boiitzvcll  v. 
Marr,  71  Vt.  i,  and  Berry  v,  Donovan,  188  Mass.  353.  And  in 
Dozvnes  v.  Betmett,  63  Kans.  653,  662,  there  is  a  recognition  of  the 
same  doctrine :  "This  is  not  the  case  of  a  union  or  association  of 
persons  intimidating  its  members  from  engaging  in  a  specific  service 
offered  by  an  employer,  and  standing  ready  and  open  to  be  entered. 
In  such  cases,  on  a  showing  of  continuous  damage  caused  by  inabil- 
ity to  secure  employees,  preventive  relief  has  been  aft'orded."  Bout- 
well  w.  Marr,  yi  Vt.  i. 

An  opposite   doctrine   leads   to   strange   conclusions.      For   in- 


ment  to  induce  non-union  men  to  join  the  union  in  order  to  enjoy  them. 
But  the  payment  of  money  to  a  non-union  man  to  abandon  employment . 
is  said  to  be  bribery  and  unlawful,  and  so  it  is  intimated  is  the  gift  of  trans- 
portation. In  Barnes  V.  Typographical  Union,  232  111.  424  (1908),  the 
Supreme  Court  of  Illinois  affirmed  an  injunction  restraining  the  defendants 
from  ofifering  transportation  or  similar  pecuniary  inducements  to  employees 
or  would  be  employees  to  leave  or  refuse  the  complainant's  employment,  and 
among  the  acts  of  which  Hammond.  J.  in  the  principal  case,  states  that 
the  defendants  have  been  guilty,  is  the  offer  of  such  transportation.  See 
also,  Frank  v.  Her  old,  63  N.  J.  Eq.  446  (1902),  Pitney,  V.  C,  contra,  Cum- 
berland Glass  Mfg.  Co.  v.  Glass  Bottle  Blowers'  Assn.,  59  N.  J.  Eq.  49 
(1899),  Reed,  V.  C.  refused  to  restrain  the  president  of  the  association 
from  giving  money  to  strikers  and  offering  it  to  induce  workers  to  strike; 
Rogers  v.  Evarfs.  17  N.  Y.  S.  264  (1891)  ;  Johnston  Harvester  Co.  v.  Mein- 
hardt,  60  How.  Pr.  168  (1880),  offers  of  transportation  to  places  where  other 
work  could  be  obtained. 


WILLCUTT    \    SOXS    CO.    f.    J.    J.    DRTSCOLL.  I217 

Stance,  if  ten  men  banded  together  undertake  by  coercion  to  keep 
two  other  men  from  entering  an  employment,  and  they  do  this  in 
order  to  force  the  employer,  for  lack  of  ability  to  get  the  two,  to 
employ  them  (the  ten),  the  employer's  right  to  a  free  market  is  in- 
\  aded,  and  if  he  suffers  thereby  he  may  proceed  either  in  equity  or 
law  against  the  ten ;  but  if  the  ten  men  first  induce  the  two  other 
men  to  enroll  themselves  in  the  same  organization  with  the  ten,  then, 
it  is  said,  the  ten  men  may  by  fines  or  threats  of  fines  so  intimidate 
the  two  men  as  to  frighten  them  from  the  employer ;  and  that  such 
intimidation  is  no  violation  of  the  employer's  right.  A  rule  of  law 
which  leads  to  such  inconsistencies  is  not  to  be  adopted.  It  does  not 
distinguish  between  coercion  and  non-coercion,  but  between  organ- 
ized coercion  and  sporadic  coercion.  It  makes  a  distinction  entirely 
foreign  and  immaterial  to  the  ground  upon  which  the  right  to  a  free 
market  is  based. 

If  it  be  said  that  fines  are  not  in  themselves  illegal,  and  that 
consequently  their  use  cannot  be  illegal,  the  answer  is  that  when 
they  are  used  as  a  method  of  coercion  and  create  a  kind  of  coercion 
inconsistent  with  the  right  of  a  person  they  are,  as  against  that  per- 
son's right,  illegal. 

It  is  said  that  the  member  fined  may  take  his  choice  either  to 
leave  the  organization  or  abide  by  its  rules  to  which  he  has  before 
assented,  and  that  where  there  is  a  choice  there  can  be  no  coercion, 
the  answer  is  that  in  almost  every  conceivable  case  of  coercion  short 
of  an  actual  overpowering  of  the  physical  forces  of  the  victim  there 
is  a  choice.  The  highwayman,  who  presents  his  cocked  pistol  to  the 
traveller  and  demands  his  purse  under  pain  of  instant  death  in  case 
of  refusal,  offers  his  victim  a  choice.  He  may  either  give  up  his 
purse  and  live,  or  refuse  and  die.  In  Carezv  v.  Rutherford,  io6 
j\[ass.  I,  the  victim  had  a  choice  either  to  pay  a  fine  or  take  the  con- 
sequences of  a  refusal.  And  so  the  member  of  a  labor  union  has 
the  choice  either  to  pay  the  fine  or  leave  the  union.  It  is  difficult  to 
realize  what  that  choice  is  in  these  days  of  organized  labor?  Is  it 
too  much  to  say  that  many  times  it  is  very  difficult,  indeed  practically 
impossible,  for  a  workman  to  get  bread  for  himself  and  his  family 
by  working  at  his  trade  unless  he  is  a  member  of  a  union.  It  is  true 
he  has  a  choice  between  paying  his  fine  and  not  paying  it,  but  is  it 
not  frequently  a  hard  one?  May  not  the  coercion  upon  him  some- 
times be  most  severe  and  effective.  Such  is  not  a  free  choice.  And 
a  niarket  filled  with  such  men  is  not  a  reasonably  free  market. , 

I  If  it  be  said  that  without  fines  the  same  result  may  be  indirectly 
reached  by  the  organization  by  exercising  two  rights,  namely,  the 
right  to  expel  a  member  and  the  right  to  charge  an  initiation  fee 
upon  his  return,  and  since  the  same  result  may  thus  be  legitimately 
reached,  nobody  is  harmed  if  it  be  reached  by  fine,  the  reply  is  that 
if  the  purpose  of  expulsion  and  the  subsequent  initiation  fee  be  each 
a  part  of  one  and  the  same  transaction,  namely,  the  imposition  of  a 
fine,  and  the  two  acts  are  in  substance  the  procedure  by  which  the 
intimidation  by  fine  is  exercised,  and  such  is  the  intention,  then 
there  may  be  a  strong  reason  for  holding  that  such  a  procedure  is 


I2l8  WILLCUTT    &    SOXS    CO.    V.    J.    J.    DRISCOLL. 

one  imposing  a  fine  and  should  be  treated  as  such.  Ordinarily,  how- 
ever, each  separate  act  should  be  treated  by  itself  and  its  validity 
judged  by  itself.  The  fact  that  separately  and  independently  exe- 
cuted they  incidentally  may  have  the  effect  of  a  fine  is  immaterial 
on  the  question  of  the  right  to  fine.  The  fact  that  a  result  may  be 
incidentally  reached  in  one  way  does  not  show  that  the  same  result 
may  be  lawfully  reached  in  another  way. 

In  considering  this  question  we  cannot  lose  sight  of  the  great 
power  of  organization.  It  should  be  taken  into  account  when  one 
is  considering  where  the  line  should  be  drawn  between  the  right  of 
the  employer  to  a  free  market  and  the  right  of  workmen  to  inter- 
fere with  that  market  by  coercion  through  the  rules  of  a  labor  union. 
It  is  not  universally  true  that  what  one  man  may  do  any  number 
of  men  by  concerted  action  may  do.  In  Pickett  v.  Walsh,  192  Mass. 
572,  Loring,  J.,  after  alluding  to  the  great  increase  of  power  by 
combination,  says :  "the  result  of  this  greater  power  of  coercion  on 
the  part  of  a  combination  of  individuals  is  that  what  is  lawful  for  an 
individual  is  not  the  test  of  what  is  lawful  for  a  combination  of  in- 
dividuals ;  or  to  state  it  in  another  way,  there  are  things  which  it 
is  lawful  for  an  individual  to  do  which  it  is  not  lawful  for  a  com- 
bination of  individuals  to  do." 

In  many  ways  the  labor  unions  have  succeeded  in  bettering  the 
condition  of  the  laborer ;  and  so  far  as  their  ultimate  intentions  and 
the  means  used  in  accomplishing  them  are  legal  they  are  entitled  to 
protection  to  the  extreme  limit  of  the  law. 

But  their  powers  must  not  be  so  far  extended  as  to  encroach 
upon  the  rights  of  others.  It  is  clear  that  if  the  power  to  intimidate 
by  fine  be  regarded  as  one  of  the  powers  which  labor  unions  may 
rightfully  exercise,  then  the  right  to  a  free  market  for  labor, — nay, 
even  the  right  of  a  laborer  to  be  free, — is  seriously  interfered  with, 
to  the  injury  both  of  the  public  and  the  employer  as  well  as  the 
laborer.^ 

Sheldon,  J.  That  is,  the  relative  right  of  the  plaintiff  to  en- 
joy a  free  labor  market  is  modified  and  limited  by  the  right  of  its 
employees  to  enter  into  an  agreement  or  combination  to  secure  higher 
wages  or  to  improve  otherwise  the  conditions  of  their  employment, 
and  for  this  purpose  to  engage  in  a  strike  and  to  use  all  rightful 
means  to  insure  the  success  of  their  strike  by  checking,  and  if  they 
can  do  so  without  resorting  to  wrongful  means,  by  wholly  stopping 
the  free  flow  of  labor  to  the  plaintiff.  But,  if  this  be  so,  manifestly 
the  plaintiff's  right  to  a  free  labor  market  is  not  only  not  a  para- 
mount right,  but  it  is  and  must  be  subject  to  the  higher  right  of  the 
defendants  to  combine  and  to  carry  on  a  strike  by  the  use  of  what- 


'  See  the  graphic  picture  drawn  by  Stevenson,  V.  C.  in  Booth  v.  Btir- 
gess,  72  N.  J.  Eq.  181  (1906),  of  the  power  of  the  business  agent  of  a  labor 
union  who  "snaps  his  fingers"  and  its  members  "against  their  will  are  coerced 
to  refrain  from  renewing  their  contracts  for  labor  w^ith  their  employers"' 
(against  whom  they  have  no  complaint  but  who  use  material  made  by  an 
"unfair"  manufacturer)  "by  the  fear  of  fines,  expulsion  from  their  labor 
unions,  social  ostracism  and  poverty." 


WILLCUTT    &    SONS    CO.    V.    J.    J.    DRISCOLL.  12 IQ 

ever  lawful  means  may  be  in  their  power ;  and  we  cannot  see  how 
this  right  can  be  further  Hmited  than  by  restricting  it  to  acts  which 
are  not  forbidden  by  law,  either  as  being  unlawful  in  themselves  or 
at  variance  with  a  sound  public  policy.  Accordingly,  the  question 
now  to  be  decided  is  whether  we  can  say  that  the  members  of  a  labor 
union  have  no  right,  acting  in  conformity  with  rules  previously 
established,  to  impose  a  fine  upon  one  of  their  own  members  if  he 
goes  to  work  or  continues  to  work  for  an  employer  against  whom  a 
justifiable  strike  has  been  declared  in  accordance  with  those  rules, 
where  there  is  no  contractual  right  or  duty  on  either  side  for  the 
performance  of  such  work. 

If  we  are  right  in  what  thus  far  has  been  said,  the  answer  to 
this  question  must  depend  upon  whether  the  imposition  of  such  a 
fine  is  either  forbidden  by  some  rule  of  law  or  is  found  to  be  incon- 
sistent with  some  principle  of  public  policy.  But  in  our  opinion 
neither  of  these  affirmations  can  be  made. 

We  cannot  make  the  law  to  be  enforced  against  labor  unions  in 
this  respect  more  stringent  than  that  which  is  applicable  to  other 
organizations  established  for  proper  purposes.  Such  unions  are 
voluntary  associations.  They  are  formed  for  proper  purposes. 
Their  objects  are  not  only  lawful,  but  commendable.  The  right  of 
labor  unions  to  enforce,  under  penalty  of  fine  or  expulsion,  compli- 
ance by  all  their  members  with  rules  and  regulations  which  have 
been  adopted  because  deemed  by  a  sufficient  majority  to  be  for  the 
common  good  and  which  are  not  in  themselves  inappropriate  or  un- 
lawful, is  necessary  to  their  continued  existence.  It  is  to  the  united 
action  of  all  their  members  that  such  organizations  owe  their 
strength  and  ability  to  accomplish  the  results  at  which  they  aim. 
Doubtless,  persons  who  do  not  agree  in  the  desirability  of  those  re- 
sults or  in  the  wisdom  or  efficiency  of  the  means  adopted  to  secure 
them,  cannot  be  required  to  continue  as  members  against  their  will, 
any  more  than  they  could  have  been  compelled  to  become  members 
in  the  first  instance.  So  long,  however,  as  such  membership  con- 
tinues and  the  organization  still  serves  the  purpose  for  which  it 
was  created,  "the  will  of  the  individual  must,"  as  was  said  by  the 
court  in  Wabash  Railroad  v.  Hannahan,  121  Fed.  Rep.  563,  "consent 
to  yield  to  the  will  of  the  majority,  or  no  organization  whether  of 
society  into  government,  capital  into  combination,  or  labor  into  coali- 
tion, can  ever  be  effectual.  The  individual  must  yield  in  order  that 
the  many  may  receive  a  greater  benefit.  The  right  of  labor  to  or- 
ganize for  lawful  purposes  and  by  organic  agreement  to  subject  the 
individual  members  to  rules,  regulations  and  conduct  prescribed  by 
the  majority,  is  no  longer  an  open  question  in  the  jurisprudence  of 
this  country."* 


'This  last  sentence  is  from  the  opinion  of  Adams,  J.  in  Wabash  R.  R. 
V.  Hannahan,  121  Fed.  563  (1903),  p.  71,  in  which  it  was  held  immaterial  that 
a  large  majority  of  the  workmen  principally  interested,  voted  against  the 
strike  (as  to  this  see,  also,  Saulsberry  v.  Coopers'  Union,  147  Ky.  170  (1912). 
He  further  says,  "The  will  of  the  individual  must  consent  to  yield  to  the  will 
of  the  majority,  or  no  organization  either  of  society  into  government,  cap- 


I220  WILLCUTT    &    SONS    CO.    V.    J.    J.    DRISCOLL. 

In  Quinn  v.  Leathern,  (1901)  A.  C.  495,  the  fines  imposed  were 
not  treated  as  in  themselves  objectionable,  but  the  decision  was  put 
upon  the  ground  that  the  defendants  had  acted,  not  for  any  purpose 
of  advancing  their  own  interests  as  workingmen,  but  for  the  sole 
purpose  of  injuring  the  plaintiff  in  his  trade.  See  language  of  Lord 
Stroud,  p.  514.  So  in  Brennan  v.  United  Hatters,  44  Vroom,  729, 
it  was  assumed  that  the  imposition  of  fines,  even  up  to  the  amount  of 
$500,  might  be  lawful ;  but  the  case  turned  upon  the  fact  that  the 
plaintiff  had  not  had  such  notice  and  trial  as  were  guaranteed  to 
him  by  the  rules  of  the  union.  In  Booth  v.  Burgess,  65  Atl.  Rep. 
226,  the  object  of  the  fines  was  to  enforce  a  strike  which  was  merely 
sympathetic  or  in  the  nature  of  a  boycott,  such  as  was  held  to  be 
unjustifiable  in  Pickett  v.  Walsh,  192  Mass.  572.  In  Purvis  v.  United 
Brotherhood,  214  Penn.  St,  348,  a  strong  decision  against  the  co- 
ercion of  an  employer  by  sympathetic  strikes  against  his  customers, 
it  was  assumed  throughout  the  opinion  that  the  oi^cers  of  the  labor 
union  would  not  have  been  prevented  from  enforcing  by  peaceful 
means  upon  their  own  members  the  rules  of  the  union  forbidding 
its  members  to  work  upon  non-union  material ;  and  this  would  in- 
clude the  right  to  impose  the  penalties  established  by  those  rules. 
In  Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  affirmed  on 
appeal  in  (1892)  A.  C,  25,  it  appeared  that  conformity  to  the  rules 
of  the  association  was  enforced  by  a  penalty  of  dismissal,  a  severer 
and  more  drastic  remedy  than  a  mere  pecuniary  penalty,  which  prac- 
tically could  usually  be  enforced  only  by  expulsion,  and  this  fact 
was  relied  upon  by  the  plaintiff  upon  the  appeal  (p.  30)  ;  but  both 
Lord  Watson  and  Lord  Morris  declined  to  treat  this  threat  of  ex- 
pulsion as  involving  any  wrongful  intimidation  (pp.  43,  49,  50). 
The  member  of  a  union  upon  whom  such  a  fine  has  been  lawfully 
imposed  in  accordance  with  by-laws  to  which  he  has  himself  pre- 
viously assented,  is  no  respect  in  the  predicament  of  a  highwayman's 
victim  who  has  the  bare  option  of  parting  with  his  money  to  save 
his  life  or  of  losing  his  life  without  thereby  saving  his  money.  '  The 
situation  of  one  who  finds  himself  compelled  to  choose  between  two 
alternatives,  however  distasteful,  which  he  has  brought  upon  him- 
self and  neither  of  which  is  unlawful,  is  in  no  way  comparable  to 
that  of  one  who  is  compelled  by  wrongful  force  to  elect  between 
submitting  to  one  of  two  alternative  injuries,  both  of  which  are  un- 
lawful. An  argument  which  rests  upon  such  a  comparison  is  with- 
out foundation. 

Nor  can  we  say  that  the  imposition  of  fines,  not  in  themselves 
unlawful  and  not  injurious  to  the  plaintiff  except  as  they  restrict  an 
inferior  right  by  the  lawful  exercise  of  a  higher  right,  is  to  be  re- 


ital  into  combination,  or  labor  into  coalition,  can  ever  be  effected.  The  in- 
dividual must  yield  in  order  that  the  many  may  receive  a  greater  benefit." 
And  see  Taft,  J.  in  Thomas  v.  Cincinnati,  etc.,  R.  Co.,  62  Fed.  803  (1894), 
p.  817,  "Tlie  officers  they  appoint  ...  if  they  choose  to  repose  such 
authority  in  any  one,  may  order  them,  on  pain  of  expulsion  from  the  order, 
peaceabl}^  to  leave  the  service  of  their  employer  because  any  of  the  terms 
of  their  employment  are  unsatisfactory." 


WILLCUTT    &    SONS    CO.    V.    J.    J.    DRISCOLL.  I22T 

garded  as  contrary  to  a  sound  public  policy.  Gloomy  vaticinations 
of  injurious  results  to  be  apprehended  froirf  the  excessive  power 
which  labor  unions  may  acquire  by  their  combination  of  many  in- 
dividuals into  one  body  do  not  greatly  impress  us.  The  power  of 
capital  hitherto  has  not  been  found  insufficient  to  prevent  other  than 
proper  advantages  from  being  gained  by  the  representatives  of  labor, 
nor  does  it  seem  to  us  likely  to  be  insufficient  in  the  future.  If  "it 
shall  appear  that  there  is  such  a  danger,  yet  we  cannot  alter  the  law 
by  denying  to  labor  unions  the  rights  and  powers  which  the  law  gives 
to  all  lawful  associations. 

The  law  does  not  do  so  vain  a  thing  as  to  allow  the  formation 
of  labor  unions  and  to  declare  their  right  to  initiate  and  by  lawful 
means  to  carry  on  a  justifiable  strike,  and  then  refuse  them  the  use 
of  the  only  practical  means  by  which  their  acknowledged  rights  can 
be  secured. 

We  do  not  consider  that  the  point  actually  decided  in  Martcll 
V.  White  was  necessarily  inconsistent  with  the  view  here  taken.  So 
far,  however,  as  the  general  doctrine  of  that  case  is  applicable  to 
fines  imposed  for  a  violation  of  rules  lawful  in  themselves  and  not 
sought  to  be  enforced  for  a  purpose  either  strictly  unlawful  or  op- 
posed to  public  policy  or  inconsistent  with  the  general  welfare  of  the 
community,  we  are  not  willing  to  follow  it.  We  do  not  think  that 
the  court  can  distinguish  between  the  coercive  effect  of  larger  and 
smaller  fines,  or  say  as  matter  of  law  that  they  do,  by  reason  merely 
of  their  magnitude,  amount  to  moral  intimidation.  All  fines  are 
necessarily  coercive  in  their  operation,  if  they  have  any  effect  what- 
ever. 

LoRiNG-,  J.  For  the  reasons  stated  in  the  opinion  of  Mr.  Jus- 
tice Sheldon  I  should  agree  with  the  conclusion  there  reached  were 
it  not  for  the  recent  decisions  made  by  this  court  in  Martell  v. 
White,  185  Mass.  255. 

In  my  opinion  the  decision  in  Martell  v.  White  ought  not  to  be 
overruled  in  the  case  at  bar  although  it  was  wrong,  provided  laborers 
and  labor  unions  will  not  suffer  injustice  from  our  standing  by  it. 

All  that  was  decided  in  Martell  v.  White  and  all  that  is  up  for 
decision  in  the  case  at  bar  is  that  the  imposition  of  a  fine  is  the  use 
of  unlawful  means. 

It  was  not  decided  in  Martell  v.  White  that  in  case  a  member 
of  a  labor  union  (which  has  instituted  a  strike  to  get  higher  wages, 
for  example)  goes  to  work  for  the  employer  in  question  at  the  old 
rate,  he  cannot  be  expelled. 

Neither  was  it  decided  in  Martell  v.  White  that  since  the  labor 
union,  in  the  case  put  above,  can  expel  such  a  member,  it  cannot,  if 
he  goes  to  work  for  the  old  rate  of  pay,  threaten  to  expel  him  for 
the  purpose  of  keeping  him  in  the  ranks  of  the  labor  union,  that  is 
to  say,  in  the  ranks  of  the  strikers. 

Further,  it  was  not  decided  in  Martell  v.  JVhite  that  if  a  mem- 
ber in  the  case  put  above  is  subject  to  expulsion  because  he  has  de- 
serted the  union  and  gone  to  work  for  the  lower  rate  of  pay,  the 
union  is  not  at  liberty  to  impose  upon  him  the  payment  of  a  sum  of 


1222  MINASIAN    Z:    OSBORN. 

money  for  the  common  benefit  as  a  condition  of  his  reinstatement. 
In  such  a  case  the  vmion  is  not  bound  to  expel  the  deserter.  It  is 
at  liberty  to  take  him  back.  On  the  other  hand,  since  it  can  expel 
him  and  at  the  same  time  is  at  liberty  to  take  him  back,  it  can  take 
him  back  on  such  terms  as  it  may  choose  to  impose,  including  the 
payment  of  a  sum  of  money  to  the  union  for  the  common  benefit. 

And  finally,  since  it  may  do  this  it  may  threaten  to  do  this  to 
keep  such  a  fellow  member  from  going  back  to  work  at  the  old 
lower  rate  of  pay.  There  is  nothing  in  Martell  v.  White  which  de- 
nies or  pretends  to  deny  this  right  to  a  labor  union. 

A  payment  imposed  upon  a  deserting  member  of  a  labor  union 
under  the  circumstances  stated  above  is  not,  using  words  accurately, 
a  fine.  The  difference  is  that  a  fine  is  imposed  upon  a  former  mem- 
ber for  breaking  the  by-laws  while  he  was  a  member,  and  can  be 
collected  whether  the  deserting  member  returns  to  the  ranks  of  the 
union  or  not,  while  such  a  sum  as  is  described  above  is  a  condition 
of  the  reinstatement  of  a  member  who  has  been  expelled  or  is  sub- 
ject lo  expulsion,  and  cannot  be  collected  if  the  member  does  not 
choose  to  be  reinstated. 

But  although  there  is  a  difference  between  a  fine  and  such  a 
payment  as  is  described  above,  the  difference  between  the  two  is  of 
no  practical  consequence  to  labor  unions.  So  long  as  a  labor  union 
can  impose  upon  a  member  who  is  subject  to  expulsion  the  payment 
of  a  sum  of  money  as  a  condition  of  his  reinstatement,  the  right  to 
impose  a  fine  (giving  to  that  word  its  accurate  meaning)  is  of  no 
practical  consequence.  No  labor  union  in  the  past  ever  attempted 
to  collect  a  fine  from  a  member  who  had  left  the  union  and  did  not 
seek  reinstatement.  And  no  labor  union  will  ever  find  it  worth  while 
to  enter  on  such  litigation.  The  game  is  not  worth  the  candle.  It 
is  because  the  difference  between  these  two  things  is  not  of  practical 
consequence  that  I  think  that  Martell  v.  White  should  not  be  over- 
ruled.^ 


""^  MINASIAN  V.  OSBORN. 

Supreme  Judicial  Court  of  Massachusetts,  1911.     210  Mass.  250. 

Appeal  from  a  decree  in  the  Superior  Court  restraining  the  de- 
fendants from  maintaining  a  strike  for  the  purpose  of  compelling 
the  plaintiff  Minasian,  to  discharge  his  father,  employed  by  him^as] 
a  helper. 


^  It  is  clear  that  the  imposition  of  a  fine  upon  an  employer  who  has 
employed  non-union  workmen,  the  payment  of  which  is  enforced  by  threat 
to  strike  or  a  threat  to  impose  such  a  fine  if  such  workmen  are  employed  is 
unlawful,  and  such  a  workman  thereby  driven  from  or  refused  employ- 
ment can  recover  in  an  action  at  law  punitive  damages  as  well  as  damages 
for  his  loss  of  employment.  Carter  v.  Osier,  134  Mo.  App.  146  (1908),  and 
the  employer  paying  such  fine  under  fear  of  a  strike  may  recover  it  back 
in  an  action  of  money  had  and  received  as  paid  under  duress,  Burke  v.  Fav, 
128  Mo.  App.  690  (1908)  ;  March  v.  Bricklayers'  Union,  79  Conn.  7  (1906). 
Carew  v.  Rutherford,  106  Mass  1   (1870),  fine  imposed  for  v'olation  of  the 


MIXASIAX    Z'.    OSBORN.  I223 

RuGG,  C.  J.  The  plaintiff  Alinas,  a  skilled  laster  by  trade,  had 
a  contract  for  labor  as  laster  with  the  Randall  Adams  Company, 
terminable  at  the  will  of  either.  With  the  consent  of  his  employer, 
he  had  in  turn  employed  as  helper  his  father,  Hampartzoon,  the 
other  plaintiff,  who  was  not  able  to  do  all  the  work  of  a  laster,  and 
who  received  no  wages  from  the  Randall  Adams  Company  and  had 
no  relation  as  servant  to  it.  The  work  was  piece  work,  and  Minas 
alone  received,  and  was  entitled  to  receive,  the  compensation  for 
their  joint  labor.  This  method  of  work  was  known  in  the  craft  as 
"contract"  or  "cross-handed." 

The  defencfant  Osborne,  who  is  the  business  agent  of  the  Last- 
ers'  Union  Local  No.  i,  notified  the  employer,  the  Randall  Adams 
Company,  that  unless  the  father  was  discharged  the  shop's  crew 
would  be  "pulled  out."  The  father  did  not  work  for  a  day  or  two, 
but  returned  to  work  after  the  superintendent  of  the  employer  told 
the  son,  Minas,  to  get  him  and  put  him  to  work  again.  The  next 
day  all  the  other  lasters  went  out  on  an  orderly  strike,  which  was 
indorsed  by  the  Union.  As  a  consequence,  both  plaintiffs  have  lost 
their  employment.  The  Lasters'  Union  substantially  controls  the 
labor  market  in  the  manufacture  of  shoes,  for  practically  all  lasters 
are  members  of  the  Union.  The  effect  of  the  strike,  if  continued, 
will  be  to  prevent  Randall  Adams  Company  from  continuing  busi- 
ness unless  it  discharges  Minas  or  compels  him  to  dispense  with  his 
assistant. 

This  is  not  a  strike  which  involves  any  inquiry  as  to  the  plain- 
tiff's habits,  conduct  or  character  which  might  render  them  unfit  or 
improper  shopmates.  It  is  not  for  the  establishment  of  any  system 
of  shop  work  or  rules  directed  to  the  curtailment  or  limitation  of 
production  or  interference  with  reasonable  industrial  advancement. 
It  is  not  aimed  to  prevent  the  highest  efficiency  of  labor  or  the  use 
of  modern  or  economical  machinery.  It  is  not  instituted  to  promote 
a  closed  shop  or  to  compel  anybody  to  join  or  to  leave  any  union, 
nor  primarily  to  cause  the  discharge  or  employment  of  any  person 
or  class  of  persons.  If  this  results  in  any  instance,  it  is  incidental 
and  not  essential  to  the  chief  end.  It  does  not  go  to  the  extent  of 
interdicting  the  absolute  and  unqualified  right  of  the  individual  to 
work,  if  he  desires,  contrary  to  the  will  or  rules  of  a  combination. 
It  is  not  based  upon  objections  to  shop  rules  established  for  the  rea- 
sonable protection  of  the  rights  of  the  employer  or  promotion  of  the 
good  order  or  economical  and  efficient  service  of  employees.  It  is 
not  directed  against  the  education  of  apprentices  or  those  who  are 
trying  to  learn  the  trade.  It  does  not  appear  to  be  for  the  establish- 
ment or  preservation  of  a  monopoly,  and  this  is  not  indicated  by 
the  framework  of  the  bill.  It  is  not  directed  against  piece  work  as 
distinguished  from  day  work,  nor  against  any  other  method  of  em- 


unions'  rule  that  the  employer  should  not  have  any  of  his  work  done  out- 
side of  his  own  yard,  paid  under  threat  of  strike.  It  would  seem  that  a 
strike  to  prevent  such  work  to  be  so  done  would  be  now  held  in  Massa- 
chusetts to  be  for  a  lawful  purpose,  see  Pickett  v.  Walsh,  192  Mass.  572 
(1906). 


1224  DK.MIXICO    7'.    CRAIG. 

ployment  where  superior  skill,  dexterity  or  swiftness  secures  com- 
mensurately  higher  rewards  than  inefficiency,  carelessness  or  sloth- 
fulness.  It  does  not  directly  or  immediately  affect  the  general  con- 
venience, necessities  or  safety  of  the  public.  Its  ostensible  object  is 
not  used  as  a  mask  for  any  ulterior  design.  The  direct  and  main 
purpose  is  to  secure  a  change  in  a  system  of  work  which  Is^asserted 
to  be  unjust  in  its  practical  operation. 

It  is  contended  that  this  system  in  its  final  analysis  resulted  in 
an  unequal  distribution  of  the  work  of  lasting  in  slack  times  and 
thus  affected  the  wages  of  the  strikers,  although  it  did  not  so  oper- 
ate when  there  was  work  enough  to  keep  all  the  employees  busy  all 
the  time.  The  finding  of  the  Superior  Court  was  in  substance  to 
this  effect  and  it  is  supported  by  evidence.  There  is  nothing  to  indicate 
that  the  strike  was  not  undertaken  in  good  faith  against  this  system. 
An  honest  effort  to  better  conditions  of  employment  by  laborers  is 
lawful.  The  right  of  the  plaintiffs  to  work  upon  such  terms  as  they 
chose  is  incident  to  the  freedom  of  the  individual.  That  "right 
.  .  .  could  not  be  taken  away  ...  or  interfered  with  by  the 
defendants  unless  it  came  into  conflict  with  an  equal  or  superior 
right  of  theirs."  DeMinko  v.  Craig,  207  Mass.  593,  599.  The  right 
of  one  person  to  dispose  of  his  labor  freely  is  not  superior  to  the 
same  rights  in  others.  The  right  of  one  to  work  under  unsanitary 
conditions  does  not  go  to  the  extent  of  preventing  others  from  strik- 
ing in  order  to  secure  a  mitigation  of  these  conditions  merely  lie- 
cause  such  a  strike  may  interfere  with  the  desire  of  the  first  to  con- 
tinue to  work  under  those  conditions.  The  same  principle  applies 
where  a  distribution  of  work  discriminates  between  men  of  average 
capacity  and  gives  an  imdue  preference  to  one  over  another  in  times 
when  there  is  a  dearth  of  work.  A  system  of  giving  out  work 
which,  under  existing  conditions,  operates  unjustly,  is  a  condition 
of  employment  in  which  all  workmen  aff'ected  by  it  in  a  particular 
shop  may  have  a  legal  interest.  Nor  is  injury  to  the  employer  a 
reason  why  a  strike  to  remedy  such  a  condition  should  be  enjoined. 


[y 


DEMIXICO  V.  CRAIG. 
Supreme  Judicial  Court  of  Massachusetts,  1911.    207  Mass.  593. 

LoRiNG,  J.  Whether  the  purpose  for  which  a  strike  is  insti- 
tuted is  or  is  not  a  legal  justification  for  it,  is  a  question  of  law  to 
be  decided  by  the  court.  To  justify  interference  with  the  rights  of 
others  the  strikers  must  in  good  faith  strike  for  a  purpose  which 
the  court  decides  to  be  a  legal  justification  for  such  interference. 
To  make  a  strike  a  legal  strike  it  is  necessary  that  the  strikers  should 
have  acted  in  good  faith  in  striking  for  a  purpose  which  the  court 
holds  to  have  been  a  legal  purpose  for  a  strike,  but  it  is  not  neces- 
sary that  they  should  have  been  in  the  right  in  instituting  a  strike 
for  such  a  purpose.  On  the  other  hand  a  strike  is  not  a  strike  for 
a  legal  purpose  because  the  strikers  struck  in  good  faith  for  a  pur- 


DKMIXICO    7'.    CRAIG.  1223 

pose  which  they  thought  was  a  sufficient  justification  for  a  strike. 
As  we  have  said  already,  to  make  a  strike  a  legal  strike  the  purpose 
of  the  strike  must  be  one  which  the  court  as  a  matter  of  law  de- 
cides is  a  legal  purpose  of  a  strike,  and  the  strikers  must  have  acted 
in  good  faith  in  striking  for  such  a  purpose. 

The  purpose  of  the  strike  herejn_questionjTas^j3£eii  found  to 
have  been  to  get  rid  of  tw^rfpremeiT  because  some  of  the  w-orkmen 
had  personal  objections  to3nd_a.di5like  for  them.  Or,  to  use  the 
words  of  their  own  counsel,  because  these  foremen  were  "distaste- 
ful to  (some  of)  the  employees."^  We  are  of  opinion  that  that  is 
not  a. legal  purpose  for  a  strike.  The  plaintiff  had  a  right  to  work 
and  that  right  ofhls  could  not  be  taken  away  from  him  or  interfered 
with  by  the  defendants  unless  it  came  into  conflict  with  an  equal  or 
superior_right_oi- theirs.  The  defendants'  right  to  better  their  con- 
dition is  such  an  equal  right.  But  to  humor  their  personal  objec- 
tions, their  likes  and  dislikes,  or  to  escape  from  what  "is  distasteful" 
to  some  of  them  is  not  in  our  opinion  a  superior  or  an  equal  right. 

It  is  doubtless  true  that  in  a  certain  sense  the  condition  of  work- 
men is  better  if  they  work  under  a  foreman  for  whom  they  do  not 
have  a  personal  dislike,  that  is  to  say,  one  who  is  not  "distasteful" 
to  them.  But  that  is  not  true  in  the  sense  in  which  those  words  are 
used  when  it  is  said  that  a  strike  to  better  the  condition  of  the  work- 
men is  a  strike  for  a  legal  purpose.  One  who  betters  his  condition 
only  by  e^TSrpin^^om  what  he  merely  dislikes  and  by  securing  what 
he  likes  does  not  better  his  condition  within  the  meaning  of  those 
words  in  the  rule  that  employees  can  strike  to  better  their  condition. 

The  defense  in  the  case  at  bar  has  not  failed  because  a  strike 
to  get  rid  of  a  foreman  never  can  be  a  strike  for  a  legal  purpose. 
We  can  conceive  of  such  a  case.  If,  for  example,  a  foreman  was 
in  the  habit  of  using  epithets  so  insulting  to  the  men  that  they  could 
not  maintain  their  self-respect  and  work  under  him,  a  strike  to  get 
rid  of  him  in  our  opinion  would  be  a  legal  strike.  It  is  not  neces- 
sary in  the  case  at  bar  to  define  such  cases  and  lay  down  their  limits. 
It  is  wiser,  in  our  opinion,  in  matters  such  as  we  are  now  dealing 
with,  to  go  no  farther  than  to  decide  each  case  as  it  arises.  What 
we  have  just  said  is  said  to  prevent  misapprehension  as  to  what  is 
now  decided.  What  we  now  decide  is  that  a  strike  to  get  rid  of  a 
foreman  because  some  of  the  employees  have  a  dislike  for  him  is 
not  a  strike  for  a  legal  purpose.' 

^The  master  in  his  findings  of  fact  states  that  this  dislike  was  caused 
by  the  rigid  but  not  oppressive  enforcement  of  the  employer's  reasonable 
rules. 

Mn  Reynolds  v.  Davis,  198  Mass.  294  (1908),  Knowlton,  J.  dissenting 
intimated  that  a  strike  to  procure  the  discharge  of  non-union  men  would 
be  lawful,  if  as  such  they  were  personally  objectionable  to  the  union  strikers. 

In  Giblan  v.  National  Amalgamated  Laborers'  Union,  L.  R.  1903,  2  K. 
B.  600;  Blanchard  v.  Neivark  Joint  District  Council,  77  N.  J.  L.  389  (1909), 
and  Connell  v.  Stalker,  45  N.  Y.  S.  1048  (1897),  it  is  held  that  a  strike  or 
threat  to  strike  to  compel  the  employer  to  discharge  the  plaintiff  because 
he  refused  to  pay  money  alleged  to  be  due  the  union  or  to  pay  a  fine,  or 
unless  he  pays  it,  is  unlawful.     In  Conway  v.  Wade,  L.  R.  1909,  A.  C.  50O, 


1226  HUSKIE   V.    GRIFFIN. 

HUSKIE  V.  GRIFFIN. 
Supreme  Court  of  New  Hampshire,   1909.     75  N.  H.  345. 

Case,  for  interfering  with  the  employment  of  the  plaintiff  in  the  Mc- 
Elwain  shoe  factory.  Trial  by  jury.  At  the  close  of  the  plaintiff's  evidence 
a  nonsuit  was  ordered,  subject  to  his  exception.  Transferred  from  the 
January  term,  1909,  of  the  superior  court  by  Plummer,  J. 

The  plaintiff's  evidence  tended  to  prove  that  while  he  was  employed 
by  the  defendant  he  applied  for  an  increase  of  wages  and  was  told  by  the 
defendant's  superintendent  that  he  was  at  liberty  to  leave  at  any  time  if  he 
could  better  himself.  He  sought  employment  elsewhere  and  one  day  received 
a  note  stating  that  he  could  have  work  at  the  McElwain  factory.  He  showed 
the  note  to  Griffin's  superintendent,  who  made  no  objection  to  the  pro- 
posed action,  but  at  once  went  to  the  office  and  drew  the  plaintiff's  wages 
for  him.  As  soon  as  the  plaintiff  had  left,  Griffin  telephoned  to  Trull,  super- 
intendent of  the  ]McElwain  shop.  Trull's  testimony  as  to  the  conversation 
with  Griffin  was  in  part  as  follows : 

"He  telephoned  and  said  there  was  a  man  from  my  factory  came  up  to 
his  factory  with  a  note  and  hired,  or  was  about  to  hire,  one  of  his  men, 
right  in  the  middle  of  the  day,  and  wanted  to  know  if  I  thought  that  was 
a  nice  thing  to  do.  I  said  it  was  not,  and  that  I  would  not  hire  the  man ; 
and  when  I  found  out  about  it  I  told  our  man  not  to  hire  him." 

Q.  "That  is,  you  instructed  your  agent  not  to  hire  him  "  A.  "Yes,  sir ; 
but  after  that  Griffin  told  me  I  could  hire  him,  but  I  told  him  I  didn't  want 
him." 

Q.  "That  was  a  httle  ironical,  wasn't  it,  Mr.  Trull?"  A.  "Well,  during 
the  same  conversation,  right  afterward,  he  said,  'You  can  have  him  if  you 
want  him,  you  can  hire  him.'  " 

Q.  "And  j'OU  understood  that  to  be  a  little  ironical,  didn't  you?"  A. 
"I  didn't  understand  anything  about  it." 

Q.  "Well,  you  didn't  hire  him,  anyhow?"  A.  "No,  sir;  I  didn't  hire 
him." 

On  cross-examination  the  witness  stated  the  conversation  more  favor- 
ably to  the  defendant. 

When  the  plaintiff  reached  the  AIcElwain  factory  he  was  refused  em- 
ployment. He  then  returned  to  the  defendant,  who  complained  because  the 
plaintiff  received  a  note  in  the  shop.  The  conversation  became  heated,  and 
the  defendant  j"efused  to  comply  with  the  plaintiff's  request  to  telephone  to 
Trull  and  adjust  the  matter. 

Peaslee,  J.  Beyond  the  issues  of  fraud  and  malicious  injury  lies  one 
which  has  caused  much  of  perplexity  and  conflicting  adjudication.  How  far 
advantage   may   or   may  not  lawfully  be  gained   by  appeal,   persuasion,   or 

it  is  held  that  it  is  for  the  jury  to  say  whether  a  controversy  as  to  the  dis- 
charge of  an  employee,  asked  for  such  a  purpose,  was  a  "trade  dispute" 
within  the  meaning  of  Section  3  of  the  British  Trade  Disputes  Act  of  1906. 
See  also,  Joost  v.  Svndicat,  Cour  d'Appel  de  Chamberv  1893,  Sirey  93,  2, 
139,  cited  in  Perrault  v.  Gauthier,  28  Can.  Sup  Ct.  241  (1898);  Oberle  v. 
Syndicat  des  Ouvriers,  Cour  d'Appel  de  Lyon  1894,  Dalloz  94,  2,  305 ;  and 
Monicr  v.  Renaud,  Cour  de  Cassation  1896,  Dalloz  1896,  1..  582  and  Ames, 
18  Harvard  Law  Review  418. 


HUSKIE   Z\    GRIFFIN.  1227 

threat  of  loss  of  future  favor, — whether  those  not  involved  in  the  initial 
contest  may  be  dragged  into  it  by  these  and  kindred  means, — are  questions 
which  courts,  jurists,  and  publicists  have  not  found  it  easy  to  answer. 

The  more  recent  authorities  reason  that,  as  the  right  to  deal  or  not  to 
deal  with  others  is  inherent  in  the  idea  of  Anglo-Saxon  liberty,  prima  facie 
a  man  can  demand  an  open  market ;  and  since  this  is  so,  one  who  interferes 
with  this  free  market  must  justify  his  acts  or  respond  in  damages.  Thus 
far  these  authorities  are  uniform;  but  when  they  proceed  to  the  determina- 
tion of  what  amounts  to  a  justification,  they  differ  widely.  The  cause  is  not 
far  to  seek.  The  rule  which  they  apply  is  that  of  reasonable  conduct,  yet 
they  discuss  and  decide  each  case  as  though  it  involved  only  a  question  of 
law".  In  reality,  the  issue  is  largely  one  of  fact,  and  the  result  is  what  would 
be  expected.  Judges  are  men,  and  their  decisions  upon  complex  facts  must 
vary  as  those  of  juries  might  on  the  same  facts.  Calling  one  determination 
an  opinion  and  the  other  a  verdict  does  not  alter  human  nature,  nor  make 
that  uniform  and  certain  which  from  its  nature  must  remain  variable  and 
uncertain.  While  these  cases  go  too  far  in  what  they  decide  as  questions 
of  law,  yet  the  test  they  constantly  declare  they  are  applying  is  the  true  one. 
The  standard  is  reasonable  conduct  under  all  the  circumstances  of  the  case. 
Berry  v.  Donovan,  188  Mass.  353;  Macauley  v.  Tierney,  19  R.  I.  255;  Doremus 
V.  Hennessy,  176  111.  608. 

In  this  state  the  question  of  reasonable  conduct,  whether  in  relation  to 
tangible  property  or  to  intangible  rights,  is  one  of  fact.  Ladd  v.  Brick  Co., 
68  X.  H.  185,  and  cases  cited.  But  while  the  question  to  be  settled  is  within 
the  province  of  the  jury,  there  are  still  legal  propositions  involved  in  the 
case.  It  must  be  determined  whether  there  is  anything  for  the  jury  to  weigh 
—whether  the  evidence  is  not  conclusive  one  way  or  the  other  upon  the  issue 
of  reasonable  conduct. 

At  the  present  time  no  one  would  think  of  submitting  to  a  jury  the 
question  whether  a  peaceful  strike  for  higher  wages  was  reasonable.  They 
would  be  told,  as  matter  of  law,  that  such  action  was  within  the  laborer's 
rights.  So  there  may  be  conduct  which  is  clearly  unreasonable,  or  not  justi- 
fiable. An  illustration  of  such  conduct  is  presented  by  the  second  ground 
for  recovery  iri  this  case.  One  may  not  interfere  with  his  neighbor's  open 
market  or  "reasonable  expectancies"  solely  for  the  purpose  of  doing  harm. 
It  has  been  said,  however,  in  several  cases  that  a  wrongful  motive  can  not 
convert  a  legal  act  into  an  illegal  one,  and  many  judges  have  thought  this 
was  the  end  of  the  law  upon  the  question.  They  seem  to  proceed  upon  a 
theory  of  absolute  right  in  the  defendant,  which  is  at  variS,nce  with  the 
holding  in  many  of  the  same  cases,  that  the  defendant  may  be  called  upon 
to  justify  his  conduct.  Indeed,  the  authorities  are  practically  unanimous  to 
the  effect  that  the  defendant  is  liable  unless  he  shows  a  justification.  If  this 
is  true,  it  follows,  as  a  matter  of  course,  that  his  right  is  not  absolute.  It  is 
a  qualified  one,  and  the  rightfulness  of  its  exercise  depends  upon  all  those 
elements  which  go  to  make  up  a  cause  for  human  action.  The  reasonable- 
ness of  the  act  can  not  always  be  satisfactorily  determined  until  something 
is  known  of  the  state  of  the  actor's  mind. 

Since  the  defendant  is  called  upon  to  justify, — to  show  reasonable  cause 
for  the  interference  with  his  neighbor's  right, — it  seems  to  clearly  follow 
that  where  his  only  reason  is  his  malicious  wish  to  injure  the  plaintiff,  he 


1228  PARKINSON    CO.    V.    BLILDIXC    TKAUKS    COUNCIL. 

has  no  justification.  It  is  a  contradiction  in  terms  to  say  that  a  desire  to  do 
harm  for  the  harm's  sake  can  be  called  a  just  motive. 

The  same  reason  applies  here.  If  the  evidence  had  been  conclusive  that 
the  act  was  done  solely  from  a  malicious  motive/  a  verdict  would  have  been 
directed  for  the  plaintiff.  It  is  not  improbable  that  there  are  other  plain 
cases — cases  where  there  is  nothing  for  the  jury  to  pass  upon.  The  third 
issue  in  this  case  does  not  come  within  that  class.  It  can  not  be  said  that 
all  reasonable  men  would  conclude  that  every  reasonable  man  would  or 
would  not  do  what  the  defendant  did,  even  though  he  acted  honestly  and 
from  a  proper  motive.  If  any  one  doubts  this  assertion,  he  has  but  to  read 
the  cases  v/here  this  and  kindred  questions  have  been  discussed  and  decided 
as  those  of  law.  Vegelalin  v.  Gimtncr,  167  Mass.  92;  Berry  v.  Donoz'an,  188 
Mass.  353,  and  cases  there  cited ;  L.  D.  Willcutt  &  Sons  Co.  v.  DriscoU,  200 
Mass.  110;  National  Protective  Ass'n  v.  Gumming,  170  N.  Y.  315;  Jacobs 
v.  Cohen,  183  N.  Y.  207;  PVilson  v.  Hey,  232  111.  389;  Barnes  v.  Union,  232 
111.  424.  When  eminent  judges  come  to  opposite  conclusions  upon  a  ques- 
tion, it  can  hardly  be  said  that  jurors  might  not  reasonably  do  the  same. 

The  plaintiflf  was  entitled  to  go  to  the  jury  upon  all  three  grounds 
which  have  been  considered:  (1)  Fraud,  (2)  malicious  injury,  and  (3)  un- 
reasonable interference  with  the  open  market. 


^^    ^v^     ....  /  ^2  )   The  right  to  boycott. 


(2A\    . 


^  PARKINSON  CO.  v.  BUILDING  TRADES  COUNCIL. 

Supreme  Court  of  California,   1908.     154  Cal.  581. 

Sloss,  J.,  concurring.^ — What  is  particularly  to  be  borne  in 
mind  is  that  we  are  not  here  concerned  with  a  strike  or  boycott  pre- 
senting any  of  the  features  of  violence,  either  expressly  or  impliedly 
threatened,  to  be  found  in  so  many  of  the  decided  cases.  There 
was  here  no  effort  or  threat  to  interfere  by  physical  force  with  the 
plaintiff  or  its  employees,  nor  any  intimidation  of  employees  or  cus- 
tomers, using  the  term  "intimidation"  as  meaning  an  act  tending  to 
inspire  fear  of  violence  to  person  or  property. 

Nor  need  we  here  consider  how  far  it  is  unlawful,  whether  by 
persuasion  or  other  means,  to  induce  one  of  the  parties  to  a  contract 
to  break  it  to  the  damage  of  the  other.  As  is  pointed  out  in  the 
opinion  of  the  chief  justice  any  acts  of  this  character  that  may  have 
been  committed  by  the  defendants  had  occurred  prior  to  the  coin- 
mencement  of  the  action,  and  there  was  no  evidence  that  any  further 

^  In  that  part  of  the  opinion  dealing  with  the  second  ground  on  which 
the  plaintiff  bases  his  right  to  recover,  i.  e.,  malicious  injury,  the  learned 
justice  says,  p.  348,  "The  state  of  mind  of  an  offending  person  may  be 
proved  in  various  ways.  It  may  appear  that  there  was  no  good  reason 
for  doing  the  act.  In  that  case  malice  may  be  inferred  from  the  proved 
absence  of  other  motive  for  the  act  done.  In  case  there  be  a  sufficient 
justifiable  motive,  it  may  prove  that  in  fact  malice  was  the  moving  force. 
In  either  case  the  question  is  one  of  fact." 

^  The  facts  are  sufficiently  stated  in  the  dissenting  opinion  of  Shaw,  J. 


PARKINSON    CO.    7'.    EUILnTNC    TRADES    COUNCIL.  1229 

interference  in  this  direction  was  to  be  anticipated.     There  was, 
therefore,  no  basis  for  enjoining  such  acts. 

The  real  question  in  the  case  turns  upon  the  activities  of  the  de- 
fendants exerted  in  two  ways:  i.  In  ceasing  to  work  for  the  plain- 
tiff (striking),  and  2.  In  notifying  (or  threatening,  if  that  term  be 
preferred)  the  customers  of  plaintiff  that  workmen  affiliated  with 
the  Building  Trades  Council  would  not  work  for  contractors  using 
materials  purchased  of  plaintiff, 

That  workmen  employed  by  the  Parkinson  Company  had  a 
right  to  leave  its  employ  whenever  they  desired,  and  for  any  reason 
that  might  seem  to  them  sufficient,  is  universally  conceded.  Was  it 
unlawful  to  notify  contractors  dealing  with  the  Parkinson  Company 
that  union  men  would  not  continue  to  work  for  them  if  they  pur- 
chased material  of  said  Parkinson  Company?  In  this  inquiry,  I 
think  it  is  unimportant  that  the  defendants  were'  merely  acting  in 
accordance  with  a  rule  adopted  before  any  difference  with  the  plain- 
tiff had  arisen.  The  opinion  of  the  chief  justice  appears  to  proceed 
upon  the  theory  that,  since  the  defendants  had  bound  themselves  to 
act  in  a  certain  way  in  the  event  of  a  controversy  of  this  kind,  it 
was  not  only  proper,  but  laudable,  for  them  to  notify  contractors 
of  their  intended  action  and  of  the  consequences  which  would  fol- 
low to  contractors  who  should  continue  to  deal  with  the  plaintiff'. 
More  than  this,  that  it  was  in  some  way  incumbent  upon  plaintiff" 
to  notify  contractors  dealing  with  him  that  a  continuance  of  their 
patronage  would  be  likely  to  result  in  loss  to  them.  I  cannot  agree 
to  the  proposition  that  the  rights  of  the  parties  are  in  any  way  af- 
fected by  such  considerations.  If  the  defendants'  course  of  conduct 
amounted  to  an  unlawful  interference  with  plaintiff's  rights,  it  was 
not  made  lawful  by  the  fact  that  the  defendants  had  decided,  in 
advance,  to  act  in  this  way  whenever  an  occasion  should  present 
itself. 

But  was  their  action  unlawful?  They  had  a  right,  as  has  been 
said,  to  cease  working  for  Parkinson.  They  had  an  equal  right  to 
cease  working  for  any  other  employer.  Upon  what  ground,  then, 
is  it  claimed  that  while  their  refusal  to  work  for  plaintiff  gave  plain- 
tiff no  cause  of  complaint,  the  refusal  to  work  for  others  did  give 
plaintiff  a  ground  of  action  ?  Because,  it  is  said,  they  are  bringing  to 
bear  upon  the  Parkinson  Company,  with  which  they  have  a  contro- 
versy, the  pressure  of  loss  inflicted  by  third  persons,  not  connected 
with  the  main  dispute,  and  are,  by  holding  over  these  third  persons 
the  risk  of  financial  loss,  compelling  them,  against  their  will,  to  in- 
flict upon  Parkinson  the  damage  resulting  from  a  cessation  of  their 
patronage.  This  is  the  argument  commonly  advanced  to  establish 
the  illegality  of  what  has  been  called,  in  much  of  the  recent  discus- 
sion of  the  subject,  a  "secondary"  rather  than  a  "primary"  boycott. 
I  do  not  see  that  we  are  helped  to  a  solution  of  the  question  of  the 
illegality  of  the  defendant's  acts  by  looking  into  the  "motive"  or 
"intent"  with  which  they  acted.  Even  if  we  assume,  contrary  to 
the  decisions  of  this  court,  that  an  improper  motive  may,  as  a  gen- 
eral proposition,  render  actionable  an  act  otherwise  lawful,  or,  to 


1230  PARKINSON    CO.    r.    CUILDIXG    TRADES    COUNCIL. 

use  another  form  of  statement,  that  damage  intentionally  inflicted 
will  be  actionable  unless  its  infliction  can  be  justified  by  showing 
that  it  was  inspired  by  a  proper  motive,  the  motive  with  which  these 
defendants  acted  was  not,  in  my  opinion,  one  which  the  law  regards 
as  improper!  '  The  defendants  were  seeking,  in  all  they  are  shown 
to  have  done,  to  secure  employment  by  the  plaintiff  for  themselves, 
to  the  exclusion  of  those  not  associated  with  them,  and  to  secure  the 
employment  upon  terms  deemed  satisfactory  or  advantageous  to 
them..  That  is  the  effort  of  every  dealer  in  goods ;  it  is  the  struggle 
of  competition,  and  is  no  more  to  be  frowned  upon  where  the  sub- 
ject of  trade  i^  labor  than  where  it  is  a  specific  commodity.  The 
uniting  or  combining  of  a  number  of  persons  to  accomplish  a  lawful 
object  by  lawful  means  Will  not,  per  se,  render  the  conduct  of  the 
many  any  more  unlawful  than  would  be  the  same  conduct  on  the 
part  of  any  one  of  them.  "It  is  plain,"  as  is  said  by  Mr.  Justice 
Holmes' in  his  dissenting  opinion  in  Vegelahn  v,  Guntner,  167  Mass. 
92,  108,  (57  Am.  St.  Rep.  443,  44  N.  E.  1077),  "from  the  slightest 
consideration  of  practical  affairs,  or  the  mosfsliperficial  reading  of 
industrial  history,  that  free  competition  means  combination,  and  that 
the  organization  of  the  world,  now  going  on  so  fast,  means  an  ever- 
increasing  might  and  scope  of  combination.  .  .  .  One  of  the 
eternal  conflicts  out  of  which  life  is  made  up  that  is  between  the 
effort  of  every  man  to  get  the  most  he  can  for  his  services,  and  that 
of  society,  disguised  under  the  name  of  capital,  to  get  his  services 
for  the  least  possible  return.  '  Combination  on  the  one  side  is  patent 
and  powerful.  Combination  on  the  other  is  the  necessary  and  de- 
sirable counterpart,  if  the  battle  is  to, be  carried  on  in  a  fair  and 
equal  way." 

,  The  injunction  then,  must  rest  upon  the  principle  that  it  is  un- 
lawful, in  an  effort  to  compel  A  to  yield  a  legitimate  benefit  to  B, 
for  B  to  demand  that  C  withdraw  his  patronage  from  A,  under  the 
penalty  of  losing  B's  services  or  patronage,  to  which  he  has  no  con- 
tract right.  That  there  are  many  cases  sustaining  the  affirmative  of 
this  proposition  is  true.^ 

-Citing  Thomas  v.  Cincinnati,  etc.,  Ry.  Co.,  62  Fed.  803  (1^4)  ;  Hop- 
kins V.  Oxley  Stave  Co.,  83  Fed.  912;  Vegelahn  v.  Guntner,  167  Mass.  92, 
108;  Beck  v.  Railway  Teamsters'  Protective  Union,  118  Mich.  497;  Gray 
V.  Building  Trades  Council,  91  Minn.  171;  Barr  v.  Essex  Trades  Council, 
53  N.  J.  Eq.  101;  Lucke  v.  Clothing  C.  &  T.  A.,  77  Md.  396  (1893)  ;  Jackson 
V.  Stanfield,  137  Ind.  592;  Crump  v.  Commonwealth,  84  Va.  927.  See  also, 
accord,  Casey  v.  Cincinnati  Typographical  Union,  45  Fed.  135  (1891)  ;  Gom- 
pers  V.  Bucks  Stove,  etc.,  Co'.,  221  U.  S.  418  (1911)  ;  see  Loewe  v.  Lawlor, 
208  U.  S.  274  (1908),  holding  a  combination  to  destroy  an  interstate  busi- 
ness by  a  boycott  is  a  combination  in  restraint  of  trade  within  the  Anti- 
Trust  Act  of  July  2,  1890;  American  Federation  of  Labor  v.  Bucks  Stove 
Co.,  i2>  D.  C.  App.  83  (1909)  ;  IVilson  v.  Hey,  232  111.  389  (1908)  ;  My  Mary- 
land Lodge  v.  Adt,  100  Md.  238  (1905),  union  men  notified  not  to  drink  beer 
brewed  by  brewers  who  purchased  complainant's  machinery;  Rockv  Moun- 
tain Bell  Tel.  Co.  v.  Montana  Fed.  of  Labor,  156  Fed.  809  (1907);  Pickett 
V.  Walsh,  192  Mass.  572  (1906)  ;  Lohse  Door  Co.  v.  Fuelle,  215  Mo.  421 
(1908),  injunction  granted  to  restrain  a  union  from  threatening  to  call 
out  all  union  men  employed  by  builders  if  they  used  the  complainant's  goods; 
Piano  and  Organ  Workers'  International  Union  v.  Piano  &  Organ  Supply 


I 


PARKINSON    CO.    V.    BUILDING    TRADES    COUNCIL.  1 23 1 

So  there  are  many  to  the  contrary.^ 

Upon  a  consideration  of  the  authorities  I  think  the  sounder  is 
that  one  who  is  under  no  contract  relation  to  another  may  freely  and 
without  question  withdraw  from  business  relations  with  that  other. 
This  includes  the  right  to  cease  to  deal,  not  only  with  one  person, 
but  with  others ;  not  only  with  the  individual  who  may  be  pursuing 
a  course  deemed  detrimental  to  another  who  opposes  it,  but  with  all 
who  by  their  patronage  aid  in  the  maintenance  of  the  objectionable 
policies.  In  other  words,  if  the  defendants  violated  no  right  of  the 
Parkinson  Company  by  refusing  to  work  for  it,  they  violated  none 
by  refusing  to  work  for  contractors  who  used  material  bought  of 
Parkinson.  SuclTTefuSal,  as  is  shown  in  the  opinion  of  the  chief 
justice,  and  as  is  stated  in  the  testimony  of  plaintiff's  manager  and 
principal  witness,  was  the  "sum  total  of  the  interference''  which 
was  practiced  or  threatened.  An  agreement  by  shipowners,  in  order 
to  secure  a  carrying  trade  exclusively  by  themselves,  that  agents  of 
members  should  be  prohibited  upon  pain  of  dismissal  from  acting 
in  the  interest  of  competing  shipowners  {Mogul  Steamship  Co.  v. 
McGregor,  L.  R.  (1892)  App.  Cas.  25)  ;  a  combination  of  retailers 
binding  the  members  to  refuse  to  purchase  of  wholesalers  who 
should  sell  to  non-members  of  the  combination  {Bohn  Mfg.  Co.  v. 
Mollis,  54  Minn.  223,  40  Am.  St.  Rep.  319,  55  N.  W.  1119)  ;  ^a- 
canley  Bros.  v.  Tierney,  19  R.  I.  255,  (61  Am.  St.  Rep.  770,  33  Atl. 
i)  ;  an  agreement- of  contractors  to  withdraw  their  patronage  from 


Co.,  124  111.  App.  353  (1906);  Irving  v.  Joint  District  Council,  180  Fed.  896 
(C.  G  S.  D.  of  N.  Y.  1910)  ;  Shine  v.  Fox  Bros.  Mfg.  Co.,  156  Fed.  35/ 
(1907);  Moores  v.  Bricklayers'  Union,  10  Ohio  Dec.  (Reprint)  665  (1889); 
Metallic  Roofing  Co.  v.  Jose,  12  Ont.  L.  R.  200  (1906);  Schlang  v.  Ladies 
Waist  Makers'  Union,  124  N.  Y.  S.  289  (1910)  ;  Beattie  v.  Callanan,  82  App. 
Div.  7  (N.  Y.  1903);  Albro  Newton  Co.  v.  Erickson,  126  N.  Y.  S.  949 
(1911)  ;  Purvis  v.  United  Brotherhood  Carpenters  &  Joiners,  214  Pa.  St. 
348  (1906)  ;  Longshore  Printing  Co.  v.  Hoivell,  26  Ore.  527,  38  Pac.  547,  28 
L.  R.  A.  464.  46  Am.  St.  640  (1894)  ;  Patch  Mfg.  Co.  v.  Protection  Lodge,  77 
Vt.  294  (1904),  threats  to  withdraw  patronage  from  boarding  houses  and 
shops  serving  strikebreakers;  Loewe  v.  California  Federation  of  Labor,  139 
Fed.  71  (C.  O  N.  D.  of  Cal.  1905)  ;  and  see  Booth  v.  Burgess,  72  N.  J.  Eq. 
181  (1906);  Jonas  Glas^.  Co.  v.  Glass  Blowers'  Assn.,  77  N.  J.  Eq.  2J9 
(1910),  and  Davis  Mach.  Co.  v.  Robinson,  84  N.  Y.  S.     837   (1903). 

^Citing  Mogul  S.  S.  Co.  v.  McGregor,  L.  R.  1892,  A.  C.  25;  National 
Protective  Assn.  v.  Gumming,  170  N.  Y.  315;  Cote  v.  Murphy,  159  Pa.  St. 
420;  McCauley  Bros.  v.  Tierney,  19  R.  I.  255;  Bohn  Mfg.  Co.  v.  Mollis,  54 
Minn.  223;  Payne  v.  Western,  etc.,  R.  Co.,  13  Lea  507  (Tenn.)  Jlcywood 
V.  Tillson,  75  Maine  225;  Raycroft  v.  Tavntor,  68  Vt.  219;  State  v.  Van, 
Pelt,  136  N,  Car.  633  (1904)  ;  Lindsay  &  Co.  v.  Montana  Fed.  of  Labor,  27 
Mont.  264  (1908),  of  which  only  the  two  last  concern  the  legality  of  a  boy- 
cott used  by  organized  labor  as  a  means  of  forcing  their  employer  to  con- 
cede to  their  demands.  In  State  v.  Fan  Pelt,  a  combination  for  such  pur- 
pose was  held  not  to  be  a  criminal  conspiracy,  and  in  Lindsay  v.  Montana 
Fed.,  an  injunction  against  boycotting  by  the  complainant  was  dissolved.  Sec 
also,  Meier  v.  Speer,  96  Ark.  618  (1910),  holding  that  it  is  not  actionable 
for  union  workmen  to  refuse,  in  accordance  with  pre-existing  rules  of  their 
union,  to  work  for  an  employer  employing  non-union  labor  or  on  a  job  on 
which  such  labor  is  employed  by  any  other  employer,  or  to  handle  material 
produced  by  such  labor,  and  see  Gray  v.  Building  Trades  Council,  supra, 
Note  2. 


1232  PARKINSON    CO.    Z'.    DUILDINX.    TRADES    COUN'CIL. 

wholesalers  selling  to  a  contractor  who  had  conceded  the  demands 
of  his  employees  for  an  eight-hour  day  {Cote  v.  Murphy,  159  Pa. 
420,  39  Am.  St.  Rep.  686,  28  Atl.  190)  ;  a  threat  by  a  railroad  com- 
pany to  discharge  any  employee  who  should  deal  with  the  plaintitT 
{Payne  v.  Western  etc.  R.  R.  Co.,  13  Lea,  507,  (49  Am.  Rep.  666))  ; 
a  threat  by  an  employer  that  he  would  discharge  any  laborer  who 
rented  plaintiff's  house  {Heyzvood  v.  Tilhon,  75  Me.  225,  (46  Am. 
Rep,  373))  have  been  held  to  give  no  right  of  action  to  the  individ- 
uals affected.  The  defendants  in  each  case  were  held  to  be  acting 
within  their  absolute  legal  right  in  entering  or  refusing  to  enter  into 
business  relations  with  persons  to  whom  they  were  not  bound  by 
contract.  I  see  no  reason  why  workmen  have  not  the  same  absolute 
right  to  dispose  of  their  labor  as  they  see  fit.  So  long  as  they  ab- 
stain from  breach  of  contract,  violence,  duress,  menace,  fraud,  mis- 
representation, or  other  unlawful  means,  they  may  lawfully  inflict 
such  damage  as  results  from  the  withholding  of  their  labor  or 
patronage.  To  quote  again  from  Judge  Holmes'  opinion  in  Vege- 
lahn  V.  Guntner,  167  Mass.  92,  (57  Am.  St.  Rep.  443,  44  N.  E. 
1077),  "If  it  be  true  that  workingmen  may  combine  with  a  view, 
among  other  things,  to  getting  as  much  as  they  can  for  their  labor, 
just  as  capital  may  combine  with  a  view  to  getting  the  greatest  pos- 
sible return,  it  must  be  true  that  when  combined  they  have  the  same 
liberty  that  combined  capital  has  to  support  their  interest  by  argu- 
ment, persuasion,  and  the  bestowal  or  .refusal  of  those  advantages 
which  they  otherwise  lawfully  control." 

The  terms  "intimidation"  and  "coercion,"  so  frequently  used 
in  the  discussion  of  this  question,  seem  to  me  to  have  no  application 
to  such  acts  as  were  here  committed.  One  cannot  be  said  to  be  "in- 
timidated" or  "coerced,"  in  the  sense  of  unlawful  compulsion,  by 
being  induced  to  forego  business  relations  with  A,  rather  than  lose 
the  benefit  of  more  profitable  relations  with  B.  It  is  equally  beside 
the  question  to  speak  of  "threats,"  where  that  which  is  threatened 
is  only  what  the  party  has  a  legal  right  to  do. 

It  may  be  that  the  combination  of  great  numbers  of  men,  as  of 
great  amounts  of  capital,  has  placed  in  the  hands  of  a  few  persons 
an  immense  power  and  one  which,  in  the  interest  of  the  general  wel- 
fare, ought  to  be  limited  and  controlled.  But  if  there  be,  in  such 
combinations,  evils  which  should  be  redressed,  the  remedxjs  to  be 
sought,  as  to  some  extent  it  has  been  sought,  by  legislation.  If  the 
conditions  require  new  laws,  those  laws  should  be  made  by  the  law- 
making power,  not  by  the  courts. 

Shaw,  J.,  dissenting. — I  dissent.  I  think  the  judgment  should 
be  modified,  but  that  it  should  not  be  reversed. 

The  plaintiff  complains  of  both  a  strike  and  a  boycott  and  asks 
an  injunction  against  both.  So  far  as  the  matter  of  the  alleged 
strike  of  plaintiff's  men  is  concerned,  I  think  the  defendants  did 
nothing  which  they  did  not  have  a  lawful  right  to  do  and  that  they 
used  no  unlawful  means  in  doing  what  they  did.  The  plaintiff"  was 
employing  a  number  of  men  who  belonged  to  the  several  unions  rep- 
resented by  the  Building  Trades  Council,  and  it  was  understood  by 


PARKIXSOX    CO.    V.    BUILDING    TRADES    COUNCIL.  I233 

all  the  members  of  the  unions  that  they  would  not  work  for  an  em- 
[)Ioyer  who  persisted  in  employing  non-union  men  in  the  business. 
The  plaintiff  employed  non-union  men  and  thereupon  the  union  men 
in  its  employ  quit  work.  There  was  no  violence  used  and  no  effort 
made  to  prevent  plaintiff  from  securing  other  men  to  work,  or  to 
prevent  other  men  from  seeking  its  employment.  The  men  had  an 
absolute  right  to  quit  work  at  any  time.  None  of  the  defendants 
used  any  improper  means  to  induce  the  men  to  quit.  They  were 
simply  informed  that  the  plaintiff  had  refused  to  discharge  the  non- 
union men,  and  thereupon,  in  accordance  with  the  rules  of  the  union, 
which  amounted  to  a  previous  agreement  of  all  the  members,  be- 
tween themselves,  they  left  the  plaintiff's  service. 

I  think  the  judgment  is  sustained  by  the  evidence  in  so  far  as 
it  enjoins  the  continuance  of  the  alleged  boycott.  The  defendants 
are  forbidden  to  coerce  plaintiff's  customers  to  withdraw  their  cus- 
tom from  plaintiff  by  threats  that  unless  they  do  so  the  defendants 
will  cause  loss  to  them  in  their  business. 

The  respective  unions  represented  by  the  Federated  Trades 
Council  were  twenty-two  in  number.  It  does  not  appear  how  many 
members  they  had  in  the  aggregate,  but  it  is  plain  from  all  circum- 
stances that  the  membership  included  the  majority  of  the  workmen 
in  that  vicinity  engaged  in  the  respective  trades,  and  that  they  were 
of  such  numbers  that  if  they  all  refused  to  work  for  any  contractor 
engaged  in  building  enterprises  in  that  neighborhood,  such  con- 
tractor would  be  unable  to  carry  on  his  business  without  substantial 
loss.  The  agreement  of  the  union  men  that  they  would  not  work 
for~ahy  contractor  who  employed  non-union  men,  or  who  used  ma- 
terial made  by  any  manufacturer  or  sold  by  any  dealer  who  em- 
ployed non-union  men,  was  embodied  in  their  rules  adopted  by  them 
long  before  any  difficulty  had  arisen  with  the  plaintiff'  and  without 
any  reference  whatever  to  the  plaintiff'.  It  was  a  general  regulation 
and  agreement,  intended  to  apply  to  all  persons  and  to  be  enforced 
whenever  any  occasion  arose  which  made  it  applicable.  The  method 
of  putting  it  in  force  was  that  the  Building  Trades  Council,  when  it 
found  any  'contractor,  dealer,  or  manufacturer,  employing  non- 
union men,  or  using  non-union  materials,  sent  out  notices  to  all 
union  workmen  and  to  other  dealers  and  contractors  that  the  person 
in  question  was  "unfair,"  and  thereupon  it  was  understood  that  all 
men  in  the  employ  of  such  other  persons  would  refuse  to  work  for 
their  respective  employers  unless  such  employer  refused  to  use  ma- 
terials received  or  purchased  from  such  boycotted  person.*     When 


*To  notify  union  members  that  an  employer  is  unfair  is  held  in  many 
cases  to  amount  to  an  order  that  they  shall  act  toward  him  as  the  rules 
of  the  union  require  and  so  is  tantamount  to  an  order  to  boycott,  and  if 
published  to  the  public  or  to  customers  of  the  employers,  amounts  to  a 
warning  that  to  deal  with  him  will  subject  them  at  least  the  risk  of  sec- 
ondary boycott;  Lindsay  &  Co.,  Ltd.  v.  Montana  Fed.  of  Labor,  37  Mont. 
264  (1908).  p.  271;  Seattle  Brewing  &  Malting  Co.  v.  Hansen.  144  Fed. 
1011  (1905);  Irving  v.  Joint  District  Council,  180  Fed.  896  (1910);  Nezvton 
Co.  V.  Erickson,  126  N.  Y.  .S.  949  (1911)  ;  especially  where  the  notice  to  the 
public  calls  attention  to  the  union  rule  which  requires  union  men  to  refuse 


1234  PARKINSON    CO.    V.    BUILDING   TRADES    COUNCIL. 

the  Parkinson  Company  employed  non-union  men  these  notices  were 
immediately  sent  to  all  its  customers.  As  a  result  its  customers  im- 
mediately countermanded  such  orders  to  plaintifif  for  goods  as  were 
then  unfilled  and  ceased  thereafter  to  deal  with  plaintiff.  The  evi- 
dence showed  that  at  least  seven  of  the  plaintiff's  important  custom- 
ers quit  dealing  with  the  plaintiff,  that  substantial  damage  had  al- 
ready been  caused  to  the  plaintiff  by  this  loss  of  custom,  during  the 
time  it  had  continued,  and  that  further  continuance  would  cause 
plaintiff'  further  substantial  loss,  that  these  customers  were,  by  the 
aforesaid  threats  of  defendants,  coerced  and  compelled,  against  their 
wish  and  will,  to  cease  dealing  with  plaintiff  or  using  goods  obtained 
from  plaintiff,  and  that  the  defendants  intended  and  threatened  to 
continue  their'boycott  indefinitely. 

The  claim  of  the  defendants  appears  to  be  that  these  notices 
were  for  the  benefit  of  the  several  persons  to  whom  they  were  sent, 
to  warn  them  of  the  consequences  that  might  attend  their  patroniz- 
ing the  plaintiff,  so  that  they  could  avoid  doing  so  and  thereby 
escape  the  evil  results  that  would  otherwise  come  to  them,  and  that 
the  sending  of  notices  for  such  a  purpose  is  not  only  lawful  and  in- 
nocent, but  praiseworthy,  as  well ;  that  these  consequences  would 
not  come  as  the  result  of  any  act  done  with  reference  to  the  parties 
warned,  but  as  the  result  of  conditions  that  existed  under  the  union 
rules  established  long  before  any  difficulty  w^ith  plaintiff  arose. 
These  rules  seem  to  be  regarded  as  of  similar  force  to  the  law  of 
the  land  and  a  notice  not  to  disregard  them  as  a  friendly  act  similar 
to  a  notice  to  a  friend  not  to  violate  the  law.  I  concede,  of  course, 
that  where  a  strike  has  been  determined  upon,  the  mere  sending  of 
a  notice  of  the  fact  is  not  unlawful,  or  blameworthy,  and  cannot  be 
made  the  foundation  of  an  action.  Perhaps  the  sending  of  these 
notices,  under  some  circumstances,  might  have  been  considered  as 
an  act  of  this  character.  But  under  the  circumstances  disclosed  in 
this  case,  and  in  view  of  the  findings  of  the  court  which  show  that 
the  acts  of  the  defendants  were  intended  to  coerce  plaintiff's  patrons 
to  cease  dealing  with  plaintiff  in  order  to  injure  plaintiff  in  its  prop- 
erty rights,  the  conduct  of  the  defendants  must  be  considered  as 
malicious  and  unlawful. 

The  defendants  had  the  right,  by  lawful  means,  to  persuade  or 
induce  others  to  cease  dealing  with  plaintiff,  although  their  purpose 
in  so  doing  was  to  injure  the  plaintiff  in  its  business  and  constrain 

to  patronize  or  work  for  those  who  are  unfair,  Purvis  v.  Local  Union  500, 
214  Pa.  St.  348  (1906)  ;  so  the  sending  of  notice  to  contractors  and  builders 
giving  a  list  of  "fair"  factories,  to  be  patronized  as  such  and  implying  that 
all  omitted  were  unfair,  was  restrained  in  Shine  v.  Fox  Bros.  Mfg.  Co.,  156 
Fed.  357  (1907).  See,  however,  Grav  v.  Building  Trades  Assn.,  91  Minn. 
171  (1903) ;  Foster  v.  Retail  Clerks'  Assn.,  78  N.  Y.  S.  860  (1902)  ;  Butterick 
Pub.  Co.  v.  Typo.  Union,  100  N.  Y.  S.  292  (1906)  ;  Sinshcimer  v.  United  Gar- 
ment Workers,  28  N.  Y.  S.  321,  77  Hun  215  (1894)  ;  Richtcr  Bros.  v.  Journey- 
men Tailors'  Union,  11  Ohio  Dec.  (Reprint)  45  (1890),  and  Saulsherry  v. 
Coopers'  International  Union,  147  Ky.  170  (1912),  where  the  court  refused 
to  restrain  union  strikers  from  carrying  away  the  union  stamp,  owned  by 
them,  though  the  absence  of  the  union  label,  stamped  on  the  goods  made,  in- 
dicated that  they  were  "unfair." 


TARKIXSON    CO.    V.    BUILDING    TRADES    COUNCIL.  I235 

plaintiff  to  yield  to  their  demands  in  regard  to  the  conduct  of  plain- 
tiff's business.  It  is  only  when  they  seek  to  accomplish  such  injury 
by  the  use  of  means  which  the  law  deems  unlawful  that  their  action 
to  that  end  becomes  unlawful  and  the  resulting  injury  an  actionable 
wrong. 

The  entire  case  depends  on  the  question  whether  or  not  the 
means  by  which  the  defendants  induced  the  plaintiff's  customers  to 
cease  dealing  with  it  were  unlawful. 

It  is  settled  in  this  state,  and  for  the  most  part  in  other  juris- 
dictions also,  that,  in  cases  where  one  person  induces  another  to  do 
an  act,  injurious  to  a  third  person,  the  mere  fact  that  the  person  in- 
stigating the  doing  of  the  act  was  actuated  by  a  bad  motive,  or  by 
malice  toward  the  third  person,  will  not  make  his  instigation  unlaw- 
ful. {Boyson  v.  Thorn,  98  Cal.  578,  (33  Pac.  492) .)  The  effect  of  the 
authorities,  in  cases  like  the  present,  is  that,  in  order  to  make  such 
instigation  unlawful,  the  customer  must  be  induced  to  cease  dealing 
with  the  party  intended  to  be  injured,  by  means  of  some  force,  in- 
timidation, or  coercion  which  destroys  his  freedom  of  action  and 
constrains  him  to  cease  such  dealing  when  he  does  not  wish  to  do 
so  and  would  not  do  so  except  for  the  constraint  put  upon  him.^  It 
is  not  necessary,  in  order  to  constitute  such  undue  influence,  or 
coercion,  that  there  should  be  any  sort  of  physical  violence  done  or 


°'  In  People  v.  Schmits,  7  Cal.  App.  330  (94  Pac.  419),  it  is  said  that  the 
means  used  to  induce  the  injurious  action  toward  the  third  party,  and  which, 
if  used,  will  make  the  resulting  injury  actionable,  includes  duress,  menace, 
fraud,  and  undue  influence,  as  defined  in  sections  1569,  1570,  1572,  and  1575 
of  the  Civil  Code.  According  to  these  sections,  fraud  involves  deceit,  duress, 
(involves)  confinement  of  the  person  or  detention  of  property,  and  menace 
a  threat  of  violence  to  person  or  property  or  of  an  attack  on  character. 
Neither  of  these  things  occurred  here.  The  class  to  which  the  conduct  of 
the  defendant  belongs,  if  it  can  be  characterized  as  illegal,  is  that  of  undue 
influence.  In  the  decisions  on  the  subject  this  method  of  influencing  the 
action  of  others  is  usually  included  with  various  forms  of  menace  and  is 
designated  as  intimidation,  or  coercion.  In  other  jurisdictions  there  are  no 
code  provisions  defining  the  general  principles  of  law  such  as  we  have  in  the 
Civil  Code.  B/  the  provisions  of  the  code  above  mentioned  a  contract  which 
is  procured  by  either  duress,  menace,  fraud,  or  undue  influence  is  said  to  be 
voidable.  The  use  of  such  means  is  characterized  as  illegal.  It  is  not  neces- 
sary, in  order  to  constitute  such  undue  influence,  or  coercion,  that  there 
should  be  any  sort  of  physical  violence  done  or  threatened,  or  that  there 
should  be  any  act  done  or  threatened,  which,  in  itself,  and  apart  from  its 
effect  in  controlling  the  action  of  the  person  coerced,  would  be  unlawful.  It 
is  sufficient  if  the  acts  threatened,  although  lawful,  were  of  such  a  character 
that  if  done  they  would  cause  loss  or  injury  to  the  person  threatened  of  so 
serious  a  nature  that  the  mere  threat  prevents  him  from  exercising  his  own 
will  in  the  matter  and  causes  him,  against  his  will,  to  act  injuriously  to  the 
person  intended  to  be  injured." 

In  Reynolds  v.  Davis,  supra,  the  court,  Knowlton,  J.,  dissenting,  affirmed  a 
decree  enjoining  a  strike  by  union  workers  to  force  their  employer  to  return 
to  an  agreement,  from  which  he  had  withdrawn,  by  which  every  grievance  of 
any  workman  was  to  be  investigated  by  a  council  of  the  union  whose  decision 
must  be  accepted  by  the  employer  under  pain  of  being  declared  "unfair." 
The  lawfulness  of  a  strike  (spoken  of  as  "sympathetic"),  not  to  further  the 
common  interests  of  the  strikers  but  to  aid  a  fellow  workman  who  feels 
aggrieved  by  his  employer,  is  discussed,  the  majority  intimating  that  it  is 
unlawful,  Knowlton,  J.  that  it  is  lawful. 


1236  PARKINSON    CO.    V.    BUILDING    TRADES    COUNCIL. 

threatened,  which,  in  itself,  and  apart  from  its  effect  in  controlling 
the  action  of  the  persons  coerced,  would  be  unlawful.  It  is  sufficient 
if  the  acts  threatened,  although  unlawful,  were  of  such  a  character 
that  if  done  they  would  cause  loss  or  injury  to  the  person  threatened 
of  so  serious  a  nature  that  the  mere  threat  prevents  him  from  exer- 
cising his  own  will  in  the  matter  and  causes  him,  against  his  will,  to 
act  injuriously  to  the  person  intended  to  be  injured. 

These  principles  are  established  by  a  great  number  of  decisions 
of  the  courts  of  this  country  and  England.  One  of  the  latest  of 
these  is  Quinn  v.  Leathern,  in  the  House  of  Lords  App.  Cas.,  (1901) 
p.  495.  Leathern,  a  butcher,  was  employing  non-union  men.  Quinn 
and  others,  members  of  a  union,  threatened  Leathern  if  he  did  not 
discharge  these  men  they  would  stop  his  custom  and  call  out  his 
union  men.  He  refused  to  discharge  the  objectionable  men  and 
thereupon,  by  threats  to  a  customer  named  Munce,  that  they  would 
also  call  out  his  men  if  he  did  not  cease  dealing  with  Leathern,  they 
forced  Munce  to  comply  with  their  demand  and  cease  buying  of 
Leathern,  to  his  injury.  One  Dickie,  a  workman,  was' by  similar 
means  compelled  to  quit  Leathem's  service.  The  question  was 
whether  or  not  there  was  sufficient  evidence  to  sustain  a  verdict  for 
the  plaintiff  for  damages.  Lord  Lindley's  opinion  is  the  fullest. 
The  following  is  extracted  from  it : 

"What  the  defendants  did  was  to  threaten  to  call  out  the  union  work- 
men of  the  plaintiff  and  of  his  customers  if  he  would  not  discharge  some 
non-union  men  in  his  employ.  In  other  words,  in  order  to  compel  the  plain- 
tiff to  discharge  some  of  his  men,  the  defendants  threatened  to  put  the 
plaintiff  and  customers  and  persons  lawfully  working  for  them,  to  all  the 
inconvenience  they  could  without  violence.  .  .  .  The  defendants  were 
doing  a  great  deal  more  than  exercising  their  own  rights;  they  were  dic- 
tating to  the  plaintiff  and  his  customers  and  servants  what  they  were  to  do." 
(p.  536).  "One  man  without  others  behind  him  who  would  obey  his. orders, 
could  not  have  done  what  these  defendants  did.  One  man,  exercising  the 
same  control  over  others  as  these  defendants  had,  could  have  acted  as  they 
did,  and  if  he  had  done  so,  I  conceive  that  he  would  have  committed  a  wrong 
towards  the  plaintiff  for  which  the  plaintiff  could  have  maintained  an  action. 
I  am  aware  that  in  Allen  v.  Flood,  App.  Cas.,  (1898)  pp.  128,  138,  Lord 
Herschell  expressed  his  opinion  that  it  was  immaterial  whether  Allen  said 
he  would  call  the  men  out  or  not.  This  may  have  been  so  in  that  particular 
case,  as  there  was  evidence  that  Allen  had  no  power  to  call  out  the  men, 
and  the  men  had  determined  to  strike  before  Allen  had  anything  to  do  with 
the  matter.  But  if  Lord  Herschell  meant  to  say  that  as  a  matter  of  law 
there  is  no  difference  between  giving  information  that  men  will  strike  and 
making  them  strike,  or  threatening  to  make  them  strike  by  calling  them 
out,  when  they  do  not  want  to  strike,  I  am  unable  to  concur  with  him.  It 
is  all  very  well  to  talk  about  peaceable  persuasion.  It  may  be  that  in  Allen 
v.  Flood  there  was  nothing  more;  but  here  there  was  very  much  more.  What 
may  begin  as  peaceable  persuasion  may  easily  become,  and  in  trades  union 
disputes  generally  do  become,  peremptory  ordering,  with  threats,  open  or 
covert,  of  very  unpleasant  consequences  to   those  who  are  not  persuaded. 


PARKIXSOX    CO.    V.    nUILDIN'G    TRADES    COUNCIL.  1^37 

Calling  workmen  out  involves  very  serious  consequences  to  such  of  them 
as  do  not  obey.  Black  lists  are  real  instruments  of  coercion,  as  every  one 
whose  name  is  on  one  soon  discovers  to  his  cost.  A  combination  not  to 
work  is  one  thing,  and  is  lawful.  A  combination  to  prevent  others  from 
working  by  annoying  them  if  they  do,  is  a  very  different  thing,  and  is  prima 
facie  unlawful.  ...  A  threat  to  call  men  out  given  by  a  trades  union 
official  to  an  employer  of  men  belonging  to  the  union  and  willing  to  work 
with  him,  is  a  form  of  coercion,  intimidation,  molestation,  or  annoyance  to 
them  and  to  him  very  difficult  to  resist,  and,  to  say  the  least,  requiring  justi- 
fication. .  .  .  It  is  said  that  conduct  which  is  not  actionable  on  the  part 
of  one  person  can  not  be  actionable  if  it  is  that  of  several  acting  in  con- 
cert. That  may  be  so  where  many  do  no  more  than  one  is  supposed  to  do. 
But  numbers  may  annoy  and  coerce  where  one  may  not.  Annoyance  and 
coercion  by  many  may  be  so  intolerable  as  to  become  actionable,  and  produce 
a  result  which  one  alone  could  not  produce.  .  .  .  Coercion  by  threats, 
open  or  disguised,  not  only  of  bodily  harm  but  of  serious  annoyance  and 
damage,  is  prima  facie,  at  all  events,  a  wrong  inflicted  on  the  person  coerced ; 
and  in  considering  whether  coercion  has  been  applied  or  not,  numbers  can 
not  be  disregarded." 

In  Thomas  v.  Cincinnati,  etc.,  Ry.  Co.,  62  Fed.  818,  Taft,  ]., 
said:  "All  the  employees  had  the  right  to  quit  their  employment, 
but  they  had  no  right  to  combine  to  quit  their  employment,  in  order 
thereby  to  compel  their  employers  to  withdraw  from  the  mutually 
profitable  relations  with  a  third  person,  for  the  purpose  of  injuring 
that  third  person,  when  the  relation  thus  sought  to  be  broken  had 
no  efifect  whatever  upon  the  character  or  reward  of  their  services." 

It  is  further  argued  that  the  only  thing  with  which  the  cus- 
tomers were  threatened  was  a  strike  of  these  customers'  employees, 
that  this  threat  was  made  by  the  men  themselves,  through  their 
agents  authorized  to  act  for  them,  and  that  they  had  a  lawful  right 
to  strike  at  any  time  and  for  any  cause  or  no  cause,  and  hence  that 
their  conduct  was  not  unlawful.  The  principle  settled  by  the  cases 
cited,  however,  is  that  while  men  have  a  right  to  strike,  they  have 
no  right  by  that  means  to  coerce  their  employers  so  as  to  compel 
them  to  act  to  the  injury  of  a  third  person.  The  fact  that  they  were 
to  strike  in  such  numbers  gave  them  a  power  over  the  threatened 
customers  of  plaintifif,  which  constituted  undue  influence  over  them, 
or  coercion  or  intimidation,  as  most  of  the  authorities  usually  ex- 
pres.'--  it,  and  this  coercion,  exercised  for  the  purpose  of  injuring  a 
third  person,  is  an  unlawful  act  and  makes  the  resulting  injury  an 
unlawful  injury,  which  may  be  enjoined  if  only  threatened,  and 
which,  if  committed,  may  be  redressed  by  an  action  for  damages. 
It  is  the  control  of  another's  conduct  against  his  will  that  is  the 
unlawful  element  in  the  proposition.  This  being  unlawful,  the  re- 
sulting injury  to  a  third  person  is  unlawful,  although  every  other 
act  in  the  transaction  is  lawful  in  itself.  So  far  as  this  unlawful 
element  is  concerned  it  is  immaterial  whether  that  control  is  ob- 
tained by  fear  produced  by  the  immediate  prospect  of  serious  pecu- 
niary loss,  as  the  result  of  a  threatened  strike,  or  by  fear  produced 
by  a  threat  of  bodily  injury. 


1238  lUOXMOLDERs'    UNION    V.    ALLIS-CII ALMI£RS    CO. 

II 

PIERCE  V.  STABLEMEN'S  UNION. 

Supreme  Court  of  California,  1909.     156  Cal.  Rep.  70. 

Henshaw,  J.  The  right  of  united  labor  to  strike,  in  furtherance  of 
trade  interests  (no  contractual  obligation  standing  in  the  waj-)  is  fully 
recognized.     The  reason   for  the  strike  may  be  based  upon  the  refusal  to 

\  , comply  with  the  employees'  demand  for  the  betterment  of  wages,  conditions, 
hours  of  labor,  in  the  discharge  of  one  employee,  or  the  engagement  of  an- 
other— in  brief,  in  any  one  or  more  of  the  multifarious  considerations  which 
in  good  faith  may  be  believed  to  tend  toward  the  advancement  of  the  em- 
ployees. After  striking,  the  employees  may  engage  in  a  boycott,  as  that  word 
is  here  employed.  As  here  employed  it  means  not  only  the  right  to  the  con- 
certed withdrawal  of  social  and  business  intercourse,  but  the  right  by  all 
legitimate  means — of  fair  publication,  and  fair  oral  or  written  persuasion, 
to  induce  others  interested  in  or  sympathetic  with  their  cause,  to  v,nthdraw 
their  social  intercourse  and  business  patronage  from  the  employer.  They 
may  go  even  further  than  this,  and  request  of  another  that  he  withdraw  his 
patronage  from  the  employer,  and  may  use  the  moral  intimidation  and  co- 
ercion of  threatening  a  like  boycott  against  him  if  he  refuses  so  to  do.  This 
last  proposition  necessarily  involves  the  bringing  into  a  labor  dispute  be- 
tween A  and  B,  C,  who  has  no  difference  with  either.  It  contemplates  that 
C,  upon  the  request  of  B,  and  under  the  moral  intimidation  lest  B  boycott 
him,  may  thus  be  constrained  to  withdraw  his  patronage  from  A,  with  whom 
he  has  no  controversy.    This  is  the  "secondary^boy^cqttj"  t)ie  legality  of  which 

■     is  vigorously  denied  by  the  English  courts,  the  federal  courts,  and  by  the 
courts  of  many  of  the  states  of  this  nation. 

Any  act  of  boycotting  which  tends  to  impair  this  constitutional  right 
freely  to  labor,  by  means  passing  beyond  moral  suasion,  and  playing  by  in- 
timidation upon  the  physical  fears,  is  unlawful.^ 

A^'^  

IRO:f^MOLDERS'  UNION  v.  ALLIS-CHALMERS  CO. 

Circuit  Court  of  Appeals,  Seventh  Circuit,  1908.     166  Fed.  Rep.  45. 

Baker,  Circtiit  Judge.  So  far  as  perstiasion  was  used  to  in- 
duce apprentices  or  others  (section  16  of  the  decree)  to  break  their 
contracts  to  serve  for  definite  times,  the  prohibition  was  right.  And 
the  reason,  we  beHeve,  is  quite  plain.  Each  party  to  such  a  contract 
has  a  property  interest  in  it.  If  either  breaks  it,  he  does  a  wrong, 
for  which  the  other  is  entitled  to  a  remedy.  And  whoever  know- 
ingly makes  himself  a  party  to  a  wrongful  and  injurious  act  be- 
comes equally  liable.  But  in  the  present  case  the  generality  of  the 
men  who  took  or  sought  the  places  left  by  the  strikers  were  em- 
ployed or  were  oflfered  employment  at  will,  as  the  strikers  had  been. 

Mn  Goldberg,  Bowen  &  Co.  v.  Stablemen's  Union,  149  Cal.  429  (1906). 
a  decree  was  affirmed  which  restrained  a  boycott  enforced  by  picketing  and 
intimidation  of  the  employers'  customers.  Underhill  v.  Murphv,  117  Ky. 
640  (1904);     Jensen  v.  Cooks'  and  Waiters'  Union,  39  Wash.  531   (1905). 


IROXMOLDERS'    UNION    7'.    ALLIS-CHALMERS    CO.  I239 

If  either  party,  with  or  without  cause,  ends  an  employment  at  will, 
the  other  has  no  legal  ground  of  complaint.     So  if  the  course  of  the 
new  men  who  quit  or  who  declined  employment  was  the  result  of 
the  free  play  of  their  intellects  and  wills,  then  against  them  ap- 
pellee had  no  cause  of  action,   and  much  less  against  men  who 
merely  furnished  information  and  arguments  to  aid  them  in  form- 
ing their  judgments.     Now  it  must  not  be  forgotten  that  the  suit 
was  to  protect  appellee's  property  rights.     Regarding  employments 
at  will,  those  rights  reached  their  limitation  at  this  line :     For  the 
maintenance  of  the  incorporeal  value  of  a  going  business  appellee 
had  the  right  to  a  free  access  to  the  labor  market,  and  a  further 
right  to  the  contmuing  services  of  those  who  accepted  employment 
at  will  until  such  services  were  terminated  by  the  free  act  of  one 
or  the  other  party  to  the  employment.     On  the  other  side  of  this 
limiting  line,  appellants,  we  think,  had  the  right,  for  the  purpose 
of  maintaining  or  increasing  the  incorporeal  value  of  their  capacity 
to  labor,  to  an  equally  free  access  to  the  labor  market.     The  right 
of  the  one  to  persuade  (but  not  coerce)  the  unemployed  to  accept 
certain  terms  is  limited  and  conditioned  by  the  right  of  the  other 
to  dissuade  (but  not  restrain)  them  from  accepting.     For  another 
thing  that  must  not  be"  forgotten  is  that  a  strike  is  one  manifesta- 
tion of  the  competition,  the  struggle  for  survival  or  place,  that  is 
inevitable   in   individualistic   society.      Dividends    and   wages   must 
both  come  from  the  joint  product  of  capital  and  labor.     And  in  the 
struggle  wherein  each  is  seeking  to  hold  or  enlarge  his  ground,  we 
believe  it  is  fundamental  that  one  and  the  same  set  of  rules  should 
govern  the  action   of  both  contestants.     For  instance,   employers 
may  lock  out  (or  threaten  to  lock  out)  employees  at  will,  with  the 
idea  that  idleness  will  force  them  to  accept  lower  wages  or  more 
onerous  conditions  ;  and  the  employees  at  will  may  strike  (or  threaten 
to  strike)   with  the  idea  of  idleness  of  the  capital  involved  will 
force  employers  to  grant  better  terms.    These  rights  (or  legitimate 
means  of  contest)  are  mutual  and  are  fairly  balanced  against  each 
other.     Again,  an  employer  of  molders,  having  locked  out  his  men, 
in  order  to  effectuate  the  purpose  of  his  lockout,  may  persuade  (but 
not  coerce)    other  foundrymen  not  to  employ  molders  for  higher 
wages  or  on  better  terms  than  those  for  which  he  made  his  stand, 
and  not  to  take  in  his  late  employees  at  all,  so  that  they  may  be 
forced  back  to  his  foundry  at  his  own  terms ;  and  molders,  having 
struck,  in  order  to  make  their  strike  effective  may  persuade   (but 
not  coerce)    other  molders  not  to  work  for  less  wages  or  under 
worse  conditions  than  those  for  which  they  struck,  and  not  to  work 
for  their  late  employer  at  all,  so  that  he  may  be  forced  to  take 
them  back  into  his  foundry  at  their  own  terms.     Here,  also,  the 
rights  are  mutual   and   fairly  balanced.     On  the  other  hand,   an 
employer,  having  locked  out  his  men,  will  not  be  permitted,  though 
it  would  reduce  their  fighting  strength,  to  coerce  their  landlords 
and   grocers    into    cutting   off    shelter    and    food ;    and    employees, 
having  struck,  will  not  be  permitted,  though  it  might  subdue  their 
late  employer,  to  coerce  dealers  and  users  into  starving  his  business. 


I240  IRONxMOLDERS     UXIOX    1'.    ALLIS-CITALM  ERS    CO. 

The  restraints,  likewise,  apply  to  both  combatants  and  are  fairly 
balanced.  These  illustrations,  we  believe,  mark  out  the  line  that 
must  be  observed  by  both.  In  contests  between  capital  and  labor 
the  only  means  of  injuring  each  other  that  are  lawful  are  those 
that  operate  directly  and  immediately  upon  the  control  and  supply 
of  work  to  be  done  and  of  labor'  to  do  it,  and  thus  directly  affect 
the  apportionment  of  the  common  fund,  for  only  at  this  point  exists 
the  competition,  the  evils  of  which  organized  society  will  endure 
rather  than  suppress  the  freedom  and  inkiative_  of__th£_iiidndduaL 
But  attempts  to  injure  each  other  by  coercmg  members  of  society 
who  are  not  directly  concerned  in  the  pending  controversy  to  make 
raids  in  the  rear  cannot  be  tolerated  by, organized  society,  for  the 
direct,  the  primary,  attack  is  upon  society  itself.  And  for  the  en- 
forcement of  these  mutual  rights  and  restraints  organized  society 
offers  to  both  parties,  equally,  all  the  instrumentalities  of  law  and 
equity. 

We  have  not  found  anything  in  the  evidence  that  justified  the 
decree  as  to  an  "illegal  boycott."  No  attempt  was  made  to  touch 
appellee's  dealings  or  relations  with  customers  and  users  of  its 
goods.  O.vley  Stave  Co.  v.  Coopers'  International  Union  (C.  C), 
y2  Fed.  695 ;  Loezve  v.  Cat.  State  Federation  of  Labor  (C.  C),  139 
Fed.  71 :  Loezve  v.  Lazvlor,  208  U.  S.  274,  28  Sup.  Ct.  301,  52  L.  Ed. 
488.  After  the  strike  was  on,  appellee  sent  patterns,  on  which  the 
strikers  had  been  working,  to  foundries  in  other  cities.  The  strikers 
procured  the  molders  in  those  cities,  who  were  also  members  of 
the  Iron  Holders'  Union  of  North  America,  to  refuse  to  make 
appellee's  castings.  Those  molders  notified  their  employers  that 
they  would  have  to  cancel  their  contracts  to  make  castings  for  ap- 
pellee, or  they  would  quit  work.  Some  employers  discharged  the 
notifiers,  others  refused  to  cancel  and  the  union  men  struck,  and 
others  complied  and  the  union  men  stayed.  In  those  instances 
where  the  foundrymen  fulfilled  their  contracts,  appellee  was  not 
damaged ;  in  those  where  foundrymen  broke  their  contracts,  there 
is  no  proof  that  appellee  has  not  collected  or  cannot  collect  adequate 
damages.  That  might  be  taken  as  a  reason  why  appellee  on  this 
branch  of  the  case  is  not  entitled  to  the  aid  of  equity.  But  there  is 
a  more  important  reason.  Appellants  were  aiming  to  prevent,  and 
appellee  to  secure,  the  doing  of  certain  work  in  w^hich  the  skill  of 
appellant's  trade  was  necessary.  Here  was  the  ground  of  contro- 
versy, and  here  the  test  of  endurance.  If  appellee  had  the  right 
(and  we  think  the  right  was  perfect)  to  seek  the  aid  of  fellow 
foundrymen  to  the  end  that  the  necessary  element  of  labor  should 
enter  into  appellee's  product,  appellant  had  the  reciprocal  right  of 
seeking  the  aid  of  fellow  molders  to  prevent  that  end.  To  what- 
ever extent  employers  may  lawfully  combine  and  co-operate  to 
control  the  supply  and  conditions  of  work  to  be  done,  to  the  same 
extent  should  be  recognized  the  right  of  workmen  to  combine  and 
co-operate  to  control  the  supply  and  the  conditions  of  the  labor 
that  is  necessary  to  the  doing  of  the  work.  In  the  fullest  recog- 
nition of  the  equality  and  mutuality  of  their  rights  and  their  re- 


MOGUL   STEAMSHIP    CO.    V.    MCGREGOR.  I24I 

striction  lies  the  peace  of  capital  and  labor,  for  so  they,  like  nations 
with  equally  well  drilled  and  equipped  armies  and  navies,  will  make 
and  keep  treaties  of  peace,  in  the  fear  of  the  cost  and  consequences 
of  war.^ 


(b)   Competition  between  trade  rivals. 


(1  )   The   right   to   induce    exclusive   dealings   by   promising   or 
giving  economic  advantages. 


MOGUL  STEAMSHIP  CO.  v.   McGREGOR. 

Court  of  Appeal,  1899.  and  House  of  Lords,  1891.     L.  R.,  23  Q.  B.  D.  598. 
and   (1892)  Appeal  Cases,  25. 

Appeal  from  the  judgment  of  Lord  Coleridge,  C.  J.,  in  an  action 
tried  without  a  jury,  reported  21  O.  B.  D.  544. 

The  plaintiffs  were  the  owners  of  vessels  used  in  the  China  and 
Australian  trades.  The  several  defendants  were  owners  of  vessels 
engaged  in  the  China  trade. 

The  plaintififs  claimed  damages  for  a  conspiracy  to  prevent  them 
from  carrying  on  their  trade  between  London  and  China,  and  an 
injunction  against  the  continuance  of  the  alleged  wrongful  acts. 

Lord  Coleridge,  C.  J.,  gave  judgment  for  the  defendants. 

The  plaintiffs  appealed.  "~^ 

BowEN_,  L.  J.  We  are  presented  in  this  case  with  an  apparent 
I'-conflict  or  antinomy  between  the  two  rights  that  are  equally  re- 
garded by  the  la\\4 — the  right  of  the  plaintiffs  to  be  protected  in 
the  legitimate  exercise  of  their  trade,  and  the  right  of  the  defend- 
ants to  carry  on  their  business  as  seems  best  to  them,  provided  they 
commit  no  wrong  to  others.  The  plaintiffs  complain  that  the  de- 
fendants have  crossed  the  line  which  the  common  law  permits ; 
and  inasmuch  as,  for  the  purpose  of  the  present  case,  we  are  to 
assume  some  possible  damage  to  the  plaintiffs,  the  real  question 
to  be  decided  is  whether,  on  such  an  assumption,  the  defendants 
in  the  conduct  of  their  commercial  affairs  have  done  anything  that 
is  unjustifiable  in  law.  The  defendants  are  a  number  of  shipowners 
who  formed  themselves  into  a  league  or  conference  for  the  pur- 
pose of  ultimately  keeping  in  their  own  hands  the  control  of  the 
tea  carriage  from  certain  Chinese  ports,  and  for  the  purpose  of 
driving  the  plaintiffs  and  other  competitors  from  the  field.  In  order 
to  succeed  in  this  object,  and  to  discourage  the  plaintiffs' vessels  from 
resorting  to  those  ports,  the  defendants  during  the  "tea  harvest" 
of  1885  combined  to  offer  to  the  local  shippers  very  low  freights, 
with  a  view  of  generally  reducing  or  "smashing"  rates,  and  thus 

'See  Searle  Mfg    Co.  v.  Tcrrv,  106  X.  Y.  S.  438   (1905).  and  compare 
'  ::ic.i'q  V.  Ladies  Waist  Makers'  Union,  124  N.  Y.  S.  289  (1910). 


1242  MOGUL    STEAMSHIP    CO.    V.    AIC  GREGOR. 

rendering  it  unprofitable  for  the  plaintiffs  to  send  their  ships  thither. 
They  offered,  moreover,  a  rebate  of  5  per  cent,  to  all  local  ship- 
pers and  agents  who  would  deal  exclusively  with  vessels  belonging 
to  the  Conference,  and  any  agent  who  broke  the  condition  was  to 
forfeit  the  entire  rebate  on  all  sjiipments  made  on  behalf  of  any 
and  every  one  of  his  principals  during  the  whole  year — a  forfeiture 
of  rebate  or  allowance  which  was  denominated  as  "penal"  by  the 
plaintiffs'  counsel.     It  must,  however,  be  taken  as  established  that 
the  rebate  was  one  which  the  defendants  need  never  have  allowed 
at  all  to  their  customers.     It  must  also  be  taken  that  the  defend- 
ants had  no  personal   ill-will  to  the  plaintiffs,  nor  any  desire  to 
harm  them  except  as  is  involved  in  the  wish  and  intention  to  dis- 
courage by  such  measures  the  plaintiffs  from  rival  vessels  to  such 
ports.    The  acts  of  which  the  plaintiffs  particularly  complained  were 
as  follows:     First,  a  circular  of  May  10,  1885,  by  which  the  de- 
fendants off'ered  to  the  local  shippers  and  their  agents  a  benefit  by 
way  of  rebate  if  they  would  not  deal  wnth  the  plaintiffs,  which  was 
to  be  lost  if  this  condition  was  not  fulfilled.     Secondly,  the  send- 
ing of  special  ships  to  Hankow  in  order  by  competition  to  deprive 
the  plaintiff's'  vessels  of  profitable  freight.     Thirdly,  the  offer  at 
Hankow  of  freight  at  a  level  w^hich  would  not  repay  a  shipowner 
for  his  adventure,  in  order  to  "smash"  freights  and  frighten  the 
plaintiffs   from  the  field.     Fourthly,  pressure  put  on  the   defend- 
ants' own  agents  to  induce  them  to  ship  only  by  the  defendants' 
vessels,  an^^iqtby  those  of  the  plaintiffs'.     It  is  to  be  observed 
w-ith  regard  to^TTmese  acts  of  which  complaint  is  made  that  they 
were  acts  that  in  themselves  could  not  be  said  to  be  illegal  unless 
made  so  by  the  object  with  which,  or  the  combination  in  the  course 
of  which,  they  were  done ;  and  that  in  reality  wdiat  is  complained 
of  is  the  pursuing  of  trade  competition  to  a  length  which  the  plain- 
tiffs consider  oppressive  and  prejudicial  to  themselves.     We  were 
invited  by  the  plaintiff's'  counsel  to  accept  the  position  from  which 
their  argument  started — that  an  action  will  lie  if  a  man  maliciously 
and  wrongfully  conducts  himself  so  as  to  injure  another  in  that 
other's  trade.     Obscurity  resides  in  the  language  used  to  state  this 
proposition.     The  terms  "maliciously,"  "wrongfully,"  and  "injure," 
are   words   all   of  which   have  accurate  meanings,   well  known  to 
the  law,  but  which  also  have  a  popular  and  less  precise  signification, 
into  which  it  is  necessary  to  see  that  the  argument  does  not  im- 
perceptibly slide.     An  intent  to  "injure"  in  strictness  means  more 
than  an  intent  to  harm.     It  connotes  an  intent  to   do  wrong^ful_ 
harm.     "Maliciously,"  in  like  manner,  means  and  implies  an  inten- 
tion to  do  an  act  which  is  wrongful,  to  the  detriment  of  another. 
The  term  "wrongful"  imports  in  its  turn  the  infringement  of  some 
right.    The  ambiguous  proposition  to  which  we  were  invited  by  the 
plaintiff's'  counsel  still,  therefore,  leaves  unsolved  the  question  of 
what,  as  between  the  plaintiffs  and  defendants,  are  the  rights  of 
trade.     For  the  purpose  of  clearness,  I  desire,  as  far  as  possible, 
to  avoid  terms  in  their  popular  use  so  slippery,  and  to  translate 
them  into  less  fallacious  language  wherever  possible. 


MOGUL    STEAMSHIP   CO.    V.    MC  GREGOR.  1 243 

The  English  law,  which  in  its  earlier  stages  began  with  but 
an  imperfect  line  of  demarcation  between  torts  and  breaches  of 
contract,  presents  us  with  no  scientific  analysis  of  the  degree  to 
which  the  intent  to  harm,  or,  in  the  language  of  the  civil  law,  the 
animits  vicino  nocendi,  may  enter  into  or  affect  the  conception  of  a 
personal  wrong.  See  Chasemorc  v.  Richards,  7  H.  L.  C.  349,  at 
p.  388.  All  personal  wrong  means  the  infringement  of  some  per- 
sonal right.  "It  is  essential  to  an  action  in  tort,"  say  the  Privy 
Counsel  in  Rogers  v.  Rajendro  Dutt,  13  Moore,  P.  C.  209,  "that  the 
act  complained  of  should  under  the  circumstances  be  legally  wrong- 
ful as  regards  the  party  complaining;  that  is,  it  must  prejudicially 
affect  him  in  some  legal  right ;  merely  that  it  will,  however  directly, 
do  a  man  harm  in  his  interests,  is  not  enough."  What,  then,  were 
the  rights  of  the  plaintiffs  as  traders  as  against  the  defendants? 
The  plaintiffs  had  a  right  to  be  protected  against  certain  kind  of 
conduct ;  and  we  have  to  consider  what  kind  of  conduct  would  pass 
this  legal  line  or  boundary.  Now,  intentionally  to  do  that  which  is 
calculated  in  the  ordinary  course  of  events  to  damage,  and  which 
does,  in  fact,  damage  another  in  that  other  person's  property  or 
trade,  is  actionable  if  dorte  without  just  cause  or  excuse.  Such 
intentional  action  when  done  without  just  cause  or  excuse  is  what 
the  law  calls  a  malicious  wrong.  See  Bromage  v.  Prosser,  4  B.  &  C. 
247;  Capital  and  Counties  Bank  v.  Henty,  per' Lord  Blackburn, 
7  App.  Cas.  741,  at  p.  772.  The  acts  of  the  defendants  which  are 
complained  of  here  were  intentional,  and  were  also  calculated,  no 
doubt,  to  do  the  plaintiffs  damage  in  their  trade.  But  in  order  to 
see  whether  they  were  wrongful  we  have  still  to  discuss  the  ques- 
tion whether  they  were  done  without  any  just  cause  or  excuse. 
Such  just  cause  or  excuse  the  defendants  on  their  side  assert  to  be 
found  in  their  own  positive  right  (subject  to  certain  limitations)  to 
carry  on  their  own  trade  freely  in  the  mode  and  manner  that  best 
suits  them,  and  which  they  think  best  calculated  to  secure  their 
own  j-dvantage. 

What,  then,  are  the  limitations  which  the  law  imposes  on  a 
trader  in  the  conduct  of  his  business  as  between  himself  and  other 
traders?  There  seems  to  be  no  burdens  or  restrictions  in  law  upon 
a  trader  which  arise  merely  from  the  fact  that  he  is  a  trader,  and 
which  are  not  equally  laid  on  all  other  subjects  of  the  Crown.  His 
right  to  trade  freely  is  a  right  which  the  law  recognizes  and  en- 
courages, but  it  is  one  which  places  him  at  no  special  disadvantage 
as  compared  with  others.  No  man,  whether  trader  or  not,  can, 
however,  justify  damaging  another  in  his  commercial  business  by 
fraud  or  misrepresentation.  Intimidation,  obstruction,  and  moles- 
tation are  forbidden;  so  is  the  intentional  procurement  of  a  viola- 
tion of  individual  rights,  contractual  or  other,  assuming  always 
that  there  is  no  just  cause  for  it.  The  intentional  driving  away  of 
customers  by  show  of  violence :  Tarleton  v.  M'Gaivley,  Peak,  N.  P. 
C.  270 ;  the  obstruction  of  actors  on  the  stage  by  preconcerted  hiss- 
ing: Clifford  V.  Brandon,  2  Camp.  358;  Gregory  v.  Brunszvick,  6 
J\Ian.  &  G.  205 ;  the  disturbance  of  wild  fowl  in  decoys  by  the  firing 


1244  MOGUL    STF.AMSniP    CO.    V.    MCGREGOR. 

of  guns:  Carrington  v.  Taylor,  ii  East,  571,  and  Kecble  v.  Hickcr- 
ingill,  ii  East,  574,  n. ;  the  impeding  or  threatening  servants  or 
workmen :  Garret  v.  Taylor,  Cro.  Jac.  567 ;  the  indticing  of  persons 
under  personal  contracts  to  break  their  contracts:  Bozven  v.  Hall. 
6  Q.  B.  D.  333;  Liimlcy  v.  Gye,  2  E.  &  B.  216;  all  are  instances  of 
such  forbidden  acts.  But  the  defendants  have  been  guilty  of  none 
of  these  acts.  They  have  done  nothing  more  against  the  plaintiffs 
than  pursue  to  the  bitter  end  a  war  of  competition  waged  in  the 
interest  of  their  own  trade.  To  the  argument  that  a  competition 
so  pursued  ceases  to  have  a  just  cause  or  excuse  when  there  is  ill- 
will  or  a  personal  intention  to  harm,  it  is  sufficient  to  reply  (as  I 
have  already  pointed  out)  that  there  was  here  no  personal  inten- 
tion to  do  any  other  or  greater  harm  to  the  plaintiffs  than  such 
as  was  necessarily  involved  in  the  desire  to  attract  to  the  defend- 
ants' ships  the  entire  tea  freights  of  the  ports,  a  portion  of  which 
would  otherwise  have  fallen  to  the  plaintiffs'  share.  I  can  find  no 
authority  for  the  doctrine  that  such  a  commercial  motive  deprives 
of  "just  cause  or  excuse"  acts  done  in  the  course  of  trade  which 
would  but  for  such  a  motive  be  justifiable.  So  to  hold  would  be 
to  convert  into  an  illegal  motive  the  instinct  of  self-advancement 
and  self-protection,  which  is  the  very  incentive  to  all  trade.  To 
say  that  a  man  is  to  trade  freely,  but  that  he  is  to  stop  short  at 
any  act  which  is  calculated  to  harm  other  tradesmen,  and  which 
is  designed  to  attract  business  to  his  own  shop,  would  be  a  strange 
and  impossible  counsel  of  perfection.  But  we  were  told  that  com- 
petition ceases  to  be  the  lawful  exercise  of  trade,  and  so  to  be  a 
lawful  excuse  for  w^hat  will  harm  another,  if  carried  to  a  length 
which  is  not  fair  or  reasonable.  The  offering  of  reduced  rates  by 
the  defendants  in  the  present  case  is  said  to  have  been  "unfair." 
This  seems  to  assume  that,  apart  from  fraud,  intimidation,  mo- 
lestation, or  obstruction,  of  some  other  personal  right  in  rem  or 
in  personam,  there  is  some  natural  standard  of  "fairness"  or  "rea- 
sonableness" (to  be  determined  by  the  internal  consciousness  of 
judges  and  juries)  beyond  which  competition  ought  not  in  law  to 
go.  There  seems  to  be  no  authority,  and  I  think,  with  submission, 
that  there  is  no  sufficient  reason  for  such  a  proposition.  It  would 
impose  a  novel  fetter  upon  trade.  The  defendants,  we  are  told 
by  the  plaintiffs'  counsel,  might  lawfully  lower  rates  provided  they 
did  not  lower  them  beyond  a  "fair  freight,"  whatever  that  may 
mean.  But  where  is  it  established  that  there  is  any  such  restriction 
upon  commerce?  And  what  is  to  be  the  definition  of  a  "fair 
freight?"  It  is  said  that  it  ought  to  be  a  normal  rate  of  freight, 
such  as  is  reasonably  remunerative  to  the  shipowner.  But  over 
what  period  of  time  is  the  average  of  this  reasonable  remunerative- 
ness  to  be  calculated?  All  commercial  men  with  capital  are  ac- 
quainted with  the  ordinary  expedient  of  sowing  one  year  a  crop 
of  apparently  unfruitful  prices,  in  order  by  driving  competition 
away  to  reap  a  fuller  harvest  of  profit  in  the  future ;  and  until  the 
present  argument  at  the  bar  it  may  be  doubted  w^hether  shipowners 
or  merchants  were  ever  deemed  to  be  bound  by  law  to  conform  to 


MOGUL    STEAMSHIP    CO.    V.    MCGREGOR.  I245 

some  imaginary  "normal"  standard  of  freights  or  prices,  or  that 
law  courts  had  a  right  to  say  to  them  in  respect  of  their  competitive 
tariffs,  "Thus  far  shalt  thou  go  and  no  further."  To  attempt  to 
limit  English  competition  in  this  way  would  probably  be  as  hope- 
less an  endeavor  as  the  experiment  of  King  Canute.  But  on  ordi- 
nary principles  of  law  no  such  fetter  on  freedom  of  trade  can  in 
my  opinion  be  warranted.  A  man  is  bound  not  to  use  his  property 
so  as  to  infringe  upon  another's  right.  Sic  utere  tiio  ut  alienum 
non  laedas.  If  engaged  in  actions  which  may  involve  dangers  to 
others,  he  ought,  speaking  generally,  to  take  reasonable  care  to  avoid 
endangering  them.  But  there  is  surely  no  doctrine  of  law  which 
compels  him  to  use  his  property  in  a  way  that  judges  and  juries 
may  consider  reasonable :  See  Chasemore  v.  Richards,  y  H.  L.  C. 
349.  If%there  is  no  such  fetter  upon  the  use  of  property  known  to 
the  English  law,  why  should  there  be  any  such  fetter  upon  trade  ? 

It  is  urged,  however,  on  the  part  of  the  plaintiffs,  that  even  if 
the  acts  complained  of  would  not  be  wrongful  had  they  been  com- 
mitted by  a  single  individual,  they  become  actionable  when  they  are 
the  result  of  concerted  action  among  several.  In  other  words,  the 
plaintiffs,  it  is  contended,  have  been  injured  by  an  illegal  conspiracy. 
Of  the  general  proposition,  that  certain  kinds  of  conduct  not  crim- 
inal in  any  one  individual  may  become  criminal  if  done  by  combina- 
tion among  several,  there  can  be  no  doubt.  The  distinction  is  based 
on  sound  reason,  for  a  combination  may  make  oppressive  or  dan- 
gerous that  which  if  it  proceeded  only  from  a  single  person  would 
be  otherwise,  and  the  very  fact  of  the  combination  may  show  that 
the  object  is  simply  to  do  harm,  and  not  to  exercise  one's  own  just 
rights.  In  the  application  of  this  undoubted  principle  it  is  neces- 
sary to  be  very  careful  not  to  press  the  doctrine  of  illegal  conspiracy 
beyond  that  which  is  necessary  for  the  protection  of  individuals  or 
of  the  public ;  and  it  may  be  observed  in  passing  that  as  a  rule  it  is 
the  damage  wrongfully  done,  and  not  the  conspiracy,  that  is  the 
gist  of  actions  on  the  case  for  conspiracy :  see  Skinner  v.  Gnn- 
ton,  I  Wms.  Saund.  229;  Hutchins  v.  Hutchins,  7  Hill's  New 
York  Cases,  104 ;  Bigelow's  Leading  Cases  on  Torts,  207.  But  what 
is  the  definition  of  an  illegal  combination?  It  is  an  agreement  by 
one  or  more  to  do  an  unlawful  act  by  unlawful  means :  O'ConncU 
V.  The  Queen,  ii  CI.  &  F.  155;  Reg.  v.  Parncll,  14  Cox  Criminal 
Cases,  508 ;  and  the  question  to  be  solved  is  whether  there  has  been 
any  such- agreement  here?  Have  the  defendants  combined  to  do  an 
unlawful  act?  Have  they  combined  to  do  a  lawful  act  by  unlawful 
means?  A  moment's  consideration  will  be  sufficient  to  show  that 
this  new  inquiry  only  drives  us  back  to  the  circle  of  definitions  and 
legal  propositions  which  I  have  already  traversed  in  the  previous 
part  of  this  judgment.  The  unlawful  act  agreed  to,  if  any,  between 
the  defendants  must  have  been  the  intentional  doing  of  some  act  to 
the  detriment  of  the  plaintiffs'  business  without  just  cause  or  ex- 
cuse. Whether  there  was  any  such  justification  or  excuse  for  the 
defendants  is  the  old  question  over  again,  which,  so  far  as  regards 
an  individual  trader,  has  been  already  solved.    The  only  differentia 


1246  MOGUL   STEAMSHIP    CO.    V.    MCGREGOR. 

that  can  exist  must  arise,  if  at  all,  out  of  the  fact  that  the  acts  done 
are  the  joint  acts  of  several  capitalists,  and  not  of  one  capitalist  only. 
The  next  point  is  whether  the  means  adopted  were  unlawful.  The 
means  adopted  were  competition  carried  to  a  bitter  end.  Whether 
such  means  were  unlawful  is  in  like  manner  nothing  but  the  old  dis- 
cussion which  I  have  gone  through,  and  which  is  now  revived  under 
a  second  head  of  inquiry,  except  so  far  as  a  combination  of  capital- 
ists differentiates  the  case  of  acts  jointly  done  by  them  from  similar 
acts  done  by  a  single  man  of  capital.  But  I  find  it  impossible  my- 
self to  acquiesce  in  the  view  that  the  English  law  places  any  such 
restriction  on  the  combination  of  capital  as  would  be  involved  in  the 
recognition  of  such  a  distinction.  If  so,  one  rich  capitalist  may 
innocently  carry  competition  to  a  length  which  would  become  unlaw- 
ful in  the  case  of  a  syndicate  with  a  joint  capital  no  larger ^han  his 
own,  and  one  individual  merchant  may  lawfully  do  that  which  a 
firm  or  partnership  may  not.  What  limits,  on  such  a  theory,  would 
be  imposed  by  law  on  the  competitive  action  of  a  joint  stock-com- 
pany limited,  is  a  problem  which  might  well  puzzle  a  casuist.  The 
truth  is,  that  the  combination  of  capital  for  purposes  of  trade  and 
competition  is  a  very  different  thing  from  such  a  combination  of 
several  persons  against  one,  with  a  view  to  harm  him,  as  fall  under 
the  head  of  an  indictable  conspiracy.  There  is  no  just  cause  or  ex- 
cuse in  the  latter  class  of  cases.  There  is  no  just  cause  or  excuse 
in  the  former.  There  are  cases  in  which  the  very  fact  of  a  combina- 
tion is  evidence  of  a  design  to  do  that  which  is  hurtful  without  just 
cause — is  evidence — to  use  a  technical  expression — of  malice.  But 
it  is  perfectly  legitimate,  as  it  seems  to  me,  to  combine  capital  for 
all  the  mere  purposes  of  trade  for  which  capital  may,  apart  from 
the  combination,  be  legitimately  used  in  trade.  To  limit  combina- 
tions of  capital,  when  used  for  purposes  of  combination,  in  the 
manner  proposed  by  the  argument  of  the  plaintiffs,  would,  in  the 
present  day,  be  impossible — would  be  only  another  method  of  at- 
tempting to  set  boundaries  to  the  tides.  Legal  puzzles  which  might 
well  distract  a  theorist  may  easily  be  conceived  of  imaginary  conflicts 
between  the  selfishness  of  a  group  of  individuals  and  the  obvious 
well-being  of  other  members  of  the  community.  Would  it  be  an  in- 
dictable conspiracy  to  agree  to  drink  up  all  the  water  from  a  common 
spring  in  a  time  of  drought ;  to  buy  up  by  preconcerted  action  all  the 
provisions  in  a  market  or  district  in  times  of  scarcity:  see  Rex  v. 
Waddington,  i  East,  143 ;  to  combine  to  purchase  all  the  shares  of  a 
company  against  a  coming  settling-day  ;  or  agree  to  give  away  articles 
of  trade  gratis  in  order  to  withdraw  custom  from  a  trader?  May 
two  itinerant  match  vendors  combine  to  sell  matches  below  their 
value  in  order  by  competition  to  drive  a  third  match  vendor  from  the 
street?  In  cases  like  these,  where  the  elements  of  intimidation, 
molestation,  or  the  other  kinds  of  illegality  to  which  I  have  alluded 
are  not  present,  the  question  must  be  decided  by  the  application  of 
the  test  I  have  indicated.  Assume  that  what  is  done  is  intentional, 
and  that  it  is  calculated  to  do  harm  to  others.  Then  com.es  the 
question.  Was  it  done  with  or  without  "just  cause  or  excuse"?    If 


MOGUL    STEAMSHIP    CO.    V.    MCGREGOR. 


1247 


it  was  bona  iide  done  in  the  use  of  a  man's  own  property,  in  the  ex- 
ercise of  a  man's  own  trade,  such  legal  justification  would,  I  think, 
exist  not  the  less  because  what  was  done  might  seem  to  others  to 
be  selfish  or  unreasonable :  see  the  summing  up  of  Erie,  J.,  and  the 
judgment  of  the  Queen's  Bench  in  Reg.  v.  Rowlands,  ly  Q.  B.  671. 
But  such  legal  justification  would  not  exist  when  the  act  was  merely 
done  with  the  intention  of  causing  temporal  harm,  without  reference 
to  one's  own  lawful  gain,  or  the  lawful  enjoyment  of  one's  own 
rights.  The  good  sense  of  the  tribunal  which  had  to  decide  would 
have  to  analyze  the  circumstances  and  to  discover  on  which  side 
of  the  line  each  case  fell.  But  if  the  real  object  were  to  enjoy  what 
was  one's  own,  or  to  acquire  for  one's  self  some  advantage  in  one's 
property  or  trade,  and  what  was  done  was  done  honestly,  peaceably, 
and  without  any  of  the  illegal  acts  above  referred  to,  it  could  not, 
in  my  opinion,  properly  be  said  that  it  was  done  without  just  cause 
or  excuse.  One  may  with  advantage  borrow  for  the  benefit  of 
traders  what  was  said  by  Erie,  J.,  in  Reg.  v.  Rozvlands,  17  O.  B.  671, 
at  p.  687,  n.,  of  workmen  and  of  masters :  ''The  intention  of  the  law 
is  at  present  to  allow  either  of  them  to  follow  the  dictates  of  their 
own  will,  with  respect  to  their  gwn  actions,  and  their  own  property ; 
and  either,  I  believe,  has  a  right  to  study  to  promote  his  own  advan- 
tage, or  to  combine  with  others  to  promote  their  mutual  advantage." 

Lastly,  we  are  asked  to  hold  the  defendants'  conference  or 
association  illegal,  as  being  in  restraint  of  trade.  The  term  "illegal" 
here  is  a  misleading  one.  Contracts,  as  they  are  called,  in  restraint 
of  trade,  are  not,  in  my  opinion,  illegal  in  any  sense,  except  that  the 
law  will  not  enforce  them.  It  does  not  prohibit  the  making  of  such 
contracts  ;  it  merely  declines,  after  they  have  been  made,  to  recognize 
their  validity.  The  law  considers  the  disadvantage  so  imposed  upon 
the  contract  a  sufficient  shelter  to  the  public. 

Lord  Esher,  M.  R.^  "At  common  law,"  says  Sir  W.  Erie 
(page  6),  "every  person  has  individually,  and  the  public  also  have 
collectively,  a  right  to  require  that  the  course  of  trade  should  be 
kept  free  from  unreasonable  obstruction."  "Every  person  has  a 
right  under  the  law,  as  between  him  and  his  fellow-subjects,  to  fiAl 
freedom  in  disposing  of  his  own  labor  or  his  own  capital  according 
to  his  own  will.  It  follows  that  every  person  is  subject  to  the  cor- 
relative duty  arising  therefrom,  and  is  prohibited  from  any  obstruc- 
tion to  the  fullest  exercise  of  this  right  which  can  be  made  compati- 
ble with  the  exercise  of  similar  rights  by  others.  Every  act  causing 
an  obstruction  to  another  in  the  exercise  of  the  right  comprised 
within  this  description — done,  not  in  the  exercise  of  the  actor's  own 
right,  but  for  the  purpose  of  obstruction — would,  if  damage  should 
be  caused  thereby  to  the  party  obstructed,  be  a  violation  of  this 
prohibition ;  and  the  violation  of  this  prohibition  by  a  single  person 
is  a  wrong,  to  be  remedied  either  by  action  or  indictment,  as  the  case 
may  be.     It  is  equally  a  wrong  whether  it  can  be  done  by  one  or  by 


^  A  part  of  the  opinion  of  Lord  Esher  and  the  opinion  of  Fry,  L.  J. 
are  omitted. 


T248  MOGUL    STKAMSIIIP    CO.    Z'.    MCGREGOR. 

many — subject  to  this  observation,  that  a  combination  of  many  to 
do  a  wrong  in  a  matter  where  the  pubHc  has  an  interest,  is  a  sub- 
stantive offense  of  conspiracy"  (p.  12).  The  hmitation  of  the  com- 
'peting  rights,  then,  is,  that  the  act  which  has  in  fact  obstructed  the 
full  right  of  the  one,  must,  in  order  to  be  actionable,  be  an  act  done 
by  the  other  beyond  the  exercise  of  the  actor's  own  right,  and  for  the 
purpose  of  obstruction.  In  Liimley  v.  Gye,  2  E.  &  B.  216,  and  in 
Boiven  v.  Hall,  6  O.  B.  D.  333,  the  act  done  which  obstructed  the 
plaintiff's  right  was  the  persuading  a  person  employed  by  the  plain- 
tiff, usider  contract,  to  break  that  contract.  Such  persuasion  is  not 
in  ordinary  course  of  trade.  The  ordinary  competition  of  trade  is 
a  fair  competition,  not  a  secret  persuasion  of  others_to  do  wrong. 

The  propositions  applicable  to  the  present  case  are  the  follow- 
ing: First,  that  the  head  of  law,  which  we  are  considering,  applies 
only  to  trade  and  to  traders ;  second,  that  the  law  has  a  peculiar  care 
for  the  preservation  of  a  free  course  of  trade  as  between  traders, 
because  such  freedom  is  for  the  benefit  of  the  public ;  third,  that  the 
principal  formula  of  law  for  the  purpose  of  enforcing  this  peculiar 
care  is — that  every  trader  has  a  legal  right  to  a  free  course  of  trade, 
meaning  thereby  a  legal  right  to  be  left  free  to  exercise  his  trade 
according  to  his  own  will  and  judgment ;  fourth,  that  if  anyone,  by 
an  act  wrongful  as  against  that  right,  interferes  with  it  to  the  in- 
jury of  a  trader,  an  action  lies  against  such  person  by  such  trader ; 
fifth,  that  any  act  of  fair  trade  competition,  though  it  injure  a  rival 
trader  even  to  the  destruction  of  his  trade,  is  not  a  wrongful  act  as 
against  such  rival  trader's  right,  but  it  is  only  the  exercise  of  the 
first-mentioned  trader's  equal  right,  and  is  therefore  not  actionable ; 
sixth,  any  act,  though  of  the  nature  of  competition  in  trade,  but 
which  is  an  act  beyond  the  limits  of  fair  trade  competition,  and  which 
is  therefore  not  an  act  of  any  real  course  of  trade  at  all,  and  the  im- 
mediate and  necessary  effect  of  which  is  such  an  interference  with  a 
rival  trader's  right  to  a  free  course  of  trade  as  prevents  him  from 
exercising  his  full  right  to  a  free  course  of  trade,  leads  to  an  almost 
irresistible  interference  of  an  indirect  motive,  and  is  therefore — un- 
less, as  may  be  possible,  the  motive  is  negatived — a  wrongful  act  as 
against  his  right,  and  is  actionable  if  injury  ensue ;  seventh,  an  act 
of  competition,  otherwisemnobjectionable,  done  not  for  the  purpose 
of  competition,  but  wttH~rnTinfto  injure  a  rival  trader  in  his  trade, 
is  not  an  act  done  in  an  ordinary  course  of  trade,  and  therefore  is 
actionable  if  injury  ensue ;  eighth,  an  agreement  among  two  or  more 
traders,  who  are  not^aml'do  not  intend  to  be  partners,  but  where 
each  is  to  carry  on  his  trade  according  to  his  own  free  will,  except 
as  regards  the  agreed  act,  that  agreed  act  being  one  to  be  done  for 
the  purpose  of  interfering,  i.  e.,  with  intent  to  interfere  with  the 
trade  of  another,  is  a  thing  done  not  in  the  due  course  of  trade,  and 
is  therefore  an  act  wrongful  against  that  other  trader,  and  is  also 
wrongful  against  tlfe  right  of  the  public  to  have  free  competition 
among  traders,  and  is,  therefore,  a  wrongful  act  against  such  trader, 
and,  if  it  is  carried  out  and  injury  ensue,  is  actionable;  ninth,  such 


\ 


LONDON    GUARANTEE    CO.    Z'.    HORN.  1249 

an  agreement,  being  a  public  wrong,  is  also  of  itself  an  illegal  con- 
spiracy, and  is  indictable. 

It  follows  that  in  the  present  case  the  agreement  of  1885  was 
within  the  rules  (8)  and  (9)  an  indictable  conspiracy,  and  that 
when  it  was  carried  out  to  its  immediate  and  intended  effect,  which 
was  an  injury  to  the  plaintiffs'  right  to  a  free  course  of  trade,  the 
plaintiffs  had  a  good  cause  of  action  against  the  defendants. 

It  follows  that  the  act  of  the  defendants  in  lowering  their 
freights  far  beyonda^  lowering  for  any  purpose  of  trade — that  is  to 
say,  so  low  tTiaFTTthey  continued  itthey  themselves  could  not  carry 
on  trade; — was  not  an  act  done  in  the  exercise  of  their  own  free  right 
or"trade,  but  was  an  act  done  evidently  for  the  purpose  of  interfer- 
ing with,  i.  e.,  with  intent  to  interfere  with,  the  plaintiffs'  right  to 
a  free  course  of  trade,  and  was  therefore  a  wrongful  act  as  against 
the  plaintiffs'  right;  and  as  injury  ensued  to  the  plaintiffs,  they  had 
also  in  respect  of  such  a  right  of  action  against  the  defendants.  The 
plaintiff,  in  respect  of  that  act,  would  have  had  a  right  of  action  if 
it  had  been  done  by  one  defendant  only ;  they  have  it  still  more 
clearly  when  that  act  was  done  by  several  defendants  combined  for 
that  purpose.  For  these  reasons  I  come  to  the  conclusion  that  the 
plaintiffs  were  entitled  to  judgment. 

Appeal  dismissed.- 


(2  )   The  right  to  use  one's  economic  power  over  third  persons  to 

prevent  them  employing  or  dealing  with  the  plaintiff. 

(Trade  boycotts.) 

LONDON  GUARANTEE  CO.  v.  HORN. 

^--^  Supreme  Court  of  Illinois.  1904.     206  ///.  493. 

Mr.  Justice  Scott.  As  we  understand  the  record  in  this  case, 
appellee  was  in  the  employ  of  Arnold,  Schwinn  &  Co.,  a  corpora- 
tion, under  a  contract  terminable  by  either  party  at  any  time,  but 
under  whieh^the-employment  would Tiave  continued  for  an  indefinite 

"The  plaintiff  having  appealed  to  the  House  of  Lords,  the  judgment  of 
the  Court  of  Appeals  was  affirmed,  L.  R.  1892,  A.  C  25. 

See  Park  Sons  &  Co.  v.  National  Druggists,  175  N.  Y.  1  (1903),  rebates 
granted  to  jobbers,  who  sold  only  to  such  retailers  as  maintained  the  selling 
price  fixed  by  the  makers,  and  Lough  v.  Ouierbridge  et  al.,  143  N.  Y.  271 
(1894),  p.  283,  a  steamship  company  granted  a  twenty-per-cent.  reduction  of 
freight  to  persons  shipping  exclusively  by  their  vessels,  the  action  was 
brought,  not  by  a  competing  line,  but  by  a  shipper  to  whom  this  reduction 
was  denied,  he  being  the  only  person  shipping  goods  by  other  vessels.  See 
the  dissenting  opinion  of  Sanborn,  J.  in  Passaic  Print  Co.  v.  Ely  &  Walker 
Drv  Goods  Co.,  105  Fed.  163,  44  C.  C.  A.  426  (1900),  cited  in  Xote  1  to 
Tuttle  v.  Buck,  post.  In  Dunshee  v.  Standard  Oil  Co.,  152  Iowa  618  (1911), 
it  was  held  that  the  cutting  of  prices  below  the  point  of  profitable  sale  to 
ruin  a  competitor  and  so  remove  his  competition,  was  actionable,  but  the 
defendant  had  adopted  other  competitive  methods  undoubtedly  wrongful, 
such  as  tampering   with   the   plaintiff's   placards,   etc. 


1250  LONDON    GUARANTEE    CO.    V.    HORN. 

period  had  appellant  not  caused  Arnold,  Schwinn  &  Co.  to  discharge 
appellee  for  the  purpose  of  compelling  appellee  to  surrender  and 
release  a  cause  of  action  which  he  claimed,  and  for  the  satisfaction 
of  which,  if  it  existed,  appellant  was  liable  up  to  the  amount  of, 
$5,000,  and  as  a  result  of  which  discharge  appellee  was  without 
employment  for  several  considerable  periods,  and  sustained  financial 
loss  and  injury  consequent  upon  such  discharge. 

Under  these  circumstances,  does  a  cause  of  action  exist  in  favor 
of  appellee  and  against  appellant?  The  result  of  this  suit  depends 
upon  the  answer  to  this  question. 

"It  is  a  violation  of  legal  right  to.  interfere  with  contractual 
relations  recognized  by  law,  if  there  be  no  sufficient  justification 
for  the  interference."^ 

We  are  of  opinion  that  the  contention  of  appellant  in  the  case 
at  bar,  to  the  effect  that  competition  in  trade,  employment  or  busi- 
ness is  such  a  justification,  is  in  accord  with  the  authorities. 

In  our  judgment  the  cases  cited  by  appellant,  in  so  far  as  they 
lend  support  to  its  theory,  will  be  found  to  be  cases  where  the  party 
who  secured  the  discharge  of  the  employee  was  in  some  way  in  com- 
petition with  that  employee  in  the  business  or  work  in  which  the  em- 
ployee was  then  engaged,  or  was  a  member  of  some  organization 
which  was  in  competition  with  the  employee  or  some  organization  to 
which  that  employee  belonged,  and  the  fact  that  such  competition 
existed  has  been  treated  by  some  of  the  courts  as  justification  for 
the  act  of  the  defendant  in  bringing  about  the  discharge.  In  fact, 
appellant  seems  to  take  this  view,  for  it  devotes  a  considerable  por- 
tion of  its  argument  to  an  attempt  to  show  that  plaintiff  and  de- 
fendant were  in  competition  with  each  other,  in  that  appellant  de- 
sired to  secure  or  satisfy  the  alleged  right  of  action  of  appellee  for 
the  least  possible  sum,  while  appellee  desired  to  secure  for  that 
right  of  action  the  greatest  possible  sum.-  While  it  is  true  that  the 
temporal  interests  of  Horn  and  appellant  were  involved  in  the  nego- 
tiations between  them,  we  believe  that  the  authorities  which  look 
upon  competition  as  a  justification  for  the  act  of  one  party  in  secur- 
ing the  discharge  of  an  employee  have  regarded  the  term  in  a  more 
restricted  sense,  and  given  to  the  term  "competition"  its  ordinary 
meaning  and  signification.  This  conclusion  is  certainly  warranted 
by  the  reasoning  in  Doremiis  v.  Hennessy,  supra,  where  the  court 


^Lord  AlacNaghten  in  Quinn  v.  Leathern,  L.  R.  1901,  A.  C.  495,  p.  510. 

*  "Counsel  seem  to  have  been  impelled  to  this  view  of  the  matter  by 
the  dissenting  opinion  of  Mr.  Justice  Holmes  in  Vegelahn  v.  Guntcr,  167 
Mass.  92,  where,  in  discussing  the  proposition  that  one  man  may  set  up  a 
business  in  competition  with  another  with  the  intention  and  expectation  of 
ruining  another  already  engaged  in  that  business  in  that  locality,  and  if  he 
succeed  in  his  intent  is  not  held  to  act  unlawfully  and  without  justifiable 
cause,  Justice  Holmes  used  this  language:  'If  the  policy  on  which  our  law 
is  founded  is  too  narrowly  expressed  in  the  term  free  competition,'  we  rnay 
substitute  'free  struggle  for  life.'  Certainly  the  policy  (that  of  permitting 
free  competition)  is  not  limited  to  struggles  between  persons  of  the  same 
class  competing  for  the  same  end.  It  applies  to  all  conflicts  of  temporal 
interests." 


LONDON    GUARANTEE    CO.   V.    HORN.  I25I 

discusses  competition  as  a  defense  to  an  action  of  this  character. 
It  cannot  be  held  that  appellee  and  appellant  were,  in  any  ordinary 
sense  of  the  term,  in  competition  with  each  other.     It  is  also  to  be 
observed  that  the  injury  which  it  was  sought  to  visit  upon  Horn, 
was  not  primarily  to  subject  him  to  a  deprivation  of  his  employ- 
ment, but  was  to  compel  him  to  surrender  a  right  not  connected 
with  his  employment.     If  the  only  object  of  appellant  had  been 
to   secure   appellee's   discharge   for  the   purpose   of   obtaining   his 
position   for  another,  or   for  the  reason  that  the  employment   of 
appellee  by  Arnold,  Schwinn  &  Co.  in  some  way  conflicted  with 
the  right  of  appellant,  or  some  organization  to  which  it  belonged, 
to  obtain  the  same  or  similar  employment,  a  very  different  ques- 
tion, and  one  not  now  before  this  court,  would  be  presented,  and 
Allen  V.  Flood,  67  L.  J.  Q.  B.  119,  and  other  cases  of  that  character 
cited  by  appellant,  would  then  be  worthy  of  greater  consideration. 
It  is  further  contended  on  the  part  of  the  appellant,  that  while 
the  evidence  may  have  shown  that  it  was  animated  by  malice,  in 
the  ordinary  acceptation  of  the  term,  toward  Horn,  the  proof  fails 
to  show  any  legal  malice.     In  this  connection  it  is  argued  that  ap- 
pellant had  the  right  to  have  Horn  discharged  under  the  terms  of 
the  contract,  or  if  it  did  not  have  that  right,  that  it  seriously  and  in 
good  faith  believed  that  it  had,  and  that  it  is  thereby  relieved  of  any 
imputation  of  malice.     There  is  no  provision  in  the  policy  which 
by  the  wildest  stretch  of  the  imagination  could  be  held  to  give  any 
such  right  to  appellant,  and  its  conduct  in  attempting  to  secure 
a  settlement  of  this  claim  shows  it  to  have  been  animated  by  a 
wanton  disregard  of  the  rights  of  appellee.     He  was  first  told  by 
the  attorney  of  appellant  that  unless  he  settled  for  a  trifling  amount 
appellant  would  have  him  discharged  by  Arnold,  Schwinn  &  Co., — 
a  threat  to  do  that  which  this  attorney  must  have  known  his  client 
hadno  right  to  do.     Afterward  Robinett,  the  agent  for  the  com- 
pany, made  the  same  threat,  and  upon  his  attention  being  called  to 
the  fact  that  the  policy  gave  him  no  power  to  require  Horn's  dis- 
charge, he  said  to  Arnold,  Schwinn  &  Co. :   "If  you  don't  discharge 
him  I  will  have  to  cancel  this  policy  to-day.    I  am  here  to  bring  this 
case  to  a  focus  to-day,  and  if  you  refuse  to  lay  him  off  I  will  cancel 
it."    When  Mr.  Robinett  made  this  threat,  which  resulted  in  appel- 
lee's discharge,  he  was  making  a  threat  to  do  an  unlawful  thing, — 
to  do  a  thing  which  appellant,  by  the  terms  of  the  contract,  had  no 
right  to  do.     The  contract  provided  only  for  its  cancellation  upon 
five  days'  notice.     It  is  not  pretended  that  any  such  notice  had  been 
given,  but  Robinett  secured  Horn's  discharge  by  threatening  to  can- 
cel the  contract  "to-day."     We  think  it  perfectly  apparent  that  the 
attorney  for  appellant,  and  its  agent,  Robinett,  each  sought  to  bring 
about,   and  finally   did  bring  about,   the   discharge  of   appellee  by 
threatening  to  do  acts  which  each,  respectively,  knew  he  had  no 
right  to  do. 

Arnold,  Schwinn  &  Co.  had  the  undoubted  right  to  discharge 
Horn  whenever  it  desired.  It  could  discharge  him  for  reasons  the 
most  whimsical  or  malicious,  or  for  no  reason  at  all,  and  no  cause 


1252  LONDON    GUARANTEE    CO.    V.    HORN. 

of  action  in  his  favor  would  be  thereby  created ;  but  it  by  no  means 
follows  that  while  the  relations  between  Arnold,  Schwinn  &  Co.  and 
Horn  were  pleasant,  and  while,  as  the  evidence  shows,  it  was  the 
expectation  of  the  company  that  Horn  would  continue  in  its  em- 
ploy "all  the  year  around,"  that  the  interference  of  appellant, 
whereby  it  secured  the  employer  to  exercise  a  right  which  was  given 
it  by  the  law,  but  which,  except  for  the  action  of  appellant,  it  would 
not  have  exercised,  is  not  actionable. 

In  Chipley  v.  Atkinson,  23  Fla.  206,  it  is  said:  "From  the  au- 
thorities referred  to  in  the  last  preceding  paragraph,  and  upon  prin- 
ciple, it  is  apparent  that  neither  the  fact  that  the  term  of  service 
interrupted  is  not  for  a  fixed  period,  nor  the  fact  that  there  is  not 
a  right  of  action  against  the  person  who  is  induced  or  influenced  to 
terminate  the  service  or  to  refuse  to  perform  his  agreement,  is  of 
itself  a  bar  to  an  action  against  the  third  person  maliciously  and 
wantonly  procuring  the  termination  of  or  a  refusal  to  perform  the 
agreement.  It  is  the  legal  right  of  the  party  to  such  agreement  to 
terminate  it  or  refuse  to  perform  it,  and  in  doing  so  he  violates 
no  right  of  the  other  party  to  it,  but  so  long  as  the  former  is  willing 
and  ready  to  perforrn^  it. is  not  tlie  legal  right,  but  is  a  wrong  on  the 
part  of  a  third  party  to  maliciously  and  wantonly  procure  the  former 
to  terminate  or  refuse  to  perform  it." 

Where  a  third  party  induces  an  employer  to  discharge  his  em- 
ployee who  is  working  under  a  contract  terminable  at  will,  but  under 
which  the  employment  would  have  continued  indefinitely,  in  accord- 
ance with  the  desire  of  the  employer,  except  for  such  interference, 
and  where  the  only  motive  moving  the  third  party  is  a  desire  to  in- 
jure the  employee  and  to  benefit  himself  at  the  expense  of  the  em- 
ployee by  compelling  the  latter  to  surrender  an  alleged  cause  of  ac- 
tion, for  the  satisfaction  of  which,  in  whole  or  in  part,  such  third 
party  is  liable,  and  where  such  right  of  action  does  not  depend  upon 
and  is  not  connected  with  the  continuance  of  such  employment,  a 
cause  of  action  arises  in  favor  of  the  employee  against  the  third 
party.^ 

*In  Joyce  v.  Great  Northern  R.  Co.,  100  Minn.  225  (1907),  the  plaintiff, 
a  switchman,  of  the  terminal  company,  while  working  in  its  yards,  was  in- 
jured by  an  engine  of  the  defendant  railway  company,  which  had  trackage 
rights  therein.  He  demanded  damages  from  the  railway,  which  honestly 
believing  that  his  claim  was  unfounded,  requested  that  the  terminal  company 
should  not  re-engage  him  till  he  released  his  claim.  He  refused  to  do  so 
and  was  refused  re-employment.  It  was  held  that  he  was  entitled  to  main- 
tain an  action  for  damages,  under  a  state  statute  making  it  unlawful  for 
any  two  or  more  employers  to  combine  or  to  confer  together  for  the  purpose 
of  preventing  any  person  from  procuring  employment,  by  threats,  promises, 
blacklisting,  or  other  means.  Compare  Raycroft  v.  Tayntor,  68  Vt.  219 
(1896),  where  defendant,  who  was  superintendent  of  a  quarry  and  Jiad  quar- 
reled with  the  plaintiff  in  regard  to  the  purchase  of  some  standing  timber  for 
his  employer,  notified  a  third  person,  who  had  a  license,  terminable  at  will, 
to  cut  stone  in  the  quarry,  and  who  employed  the  plaintiff  to  assist  him 
therein,  that  he,  the  defendant,  would  terminate  the  license  if  the  licensee 
continued  to  employ  the  plaintiff  on  the  work.  The  plaintiff,  who  in  conse- 
quence was  discharged,  was  held  to  have  no  cause  of  action.  And  see 
Tennessee  Coal  and  Iron  Co.  v.  Kelly,  163  Ala.  348  (1909),  where  the  plain- 


1 


I 


GRAHAM    V.    ST.    CHARLKS    STREET    R.    CO.  I253 


GRAHAM  V.   ST.  CHARLES   STREET  RAILROAD  CO. 
Supreme  Court  of  Louisiana,  1895.    47  La.  Ann.  214.    47  La.  Ann.  1656. 

NiCHOLLS,  C.  J.  Defendants'  counsel  in  his  brief  refers  us  to 
the  case  of  Orr  v.  Home  Mutual  Insurance  Company  et  al.,  12  An. 
255,  as  containing  a  clear  exposition  of  the  principle  upon  which  this 
defence  rests.  He  says:  "Defendants  had  the  legal  right  to  dis- 
charge their  servants  arbitrarily  and  without  cause.  The  exercise 
of  a  legal  right  gives  no  cause  of  action  against  them.  If  the  plain- 
tiff be  injured  it  is  damnum  absque  injuria.  No  authority  has  been 
suggested  in  opposition  to  the  principle  that  a  man  has  an  undoubted 
right  to  employ  labor  and  fix  the  terms  and  conditions  of  that  em- 
ployment in  his  discretion.  In  the  instant  case  defendants  had  the 
absolute  legal  right,  the  exercise  of  which  was  proper  in  the  conduct 
of  their  business,  to  prohibit  their  employees  from  going  to  grocery 
stores  or  barrooms  or  from  dealing  in  any  way  or  with  any  person 
in  such  manner  as  might  be  prejudicial  to  the  interest  of  their  busi- 
ness. They  had  the  legal  right  to  insist  upon  abstention  in  dealing 
as  a  condition  precedent  to  their  employment  or  retention  in  service. 
If  the  employees  did  not  see  fit  to  comply  with  these  restrictions 
they  were  at  liberty  to  leave  the  employment.  They  were  not  co- 
erced in  any  sense  of  the  word.  They  were  free  agents.  They  could 
have  continued  dealing  with  plaintiff  if  they  saw  fit,  but  they  could 
not  so  deal  and  remain  in  the  employment  of  the  defendant  com- 
pany.   Defendants  were  exercising  a  legal  right." 

The  issue  before  us  is  whether,  while  the  plaintiff",  engaged  in  a 
lawful  business,  is  legitimately  earning  his  livelihood  by  and  through 
the  custom  and  patronage  of  others,  the  defendants,  a  corporation, 
and  its  foreman,  having  the  power  of  employing  and  discharging 
large  numbers  of  persons,  can,  without  incurring  legal  liability  there- 
for, without  justifiable  cause,  and  moved  solely  by  a  malicious  and 
wanton  intent  and  design  to  injure  the  plaintiff,  use  their  power  of 
employment  and  discharge  upon  persons  seeking  employment  from 
them,  or  already  in  their  employ,  so  as  to  cause  those  who  are  al- 
ready dealing  with  the  plaintiff  to  desist  from  further  doing  so,  and 
those  who  would  desire  to  do  so  from  carrying  out  their  wishes  by 
threats  of  non-employment  or  discharge.     In  so  doing  the  defendant 

tiff's  employer  operated  a  sawmill  on  the  defendant  company's  property 
under  a  terminable  arrangement  with  it,  the  latter  strongly  objected  to  union 
labor  and  constantly  requested  the  plaintiff's  employer  to  discharge  certain 
workmen  employed  bv  them,  including  the  plaintiff,  alleged  to  be  union  men 
and  to  be  interfering  with  the  company's  employees.  They  refused  and, 
friction  resulting,  terminated  the  arrangement  and  abandoned  their  opera- 
tion, throwing  the  plaintiff,  who  was  in  fact  not  a  union  man,  out  of  employ- 
ment. 

See  also,  Mackenzie  v.  Iron  Trades  Employers'  Ins.  Co.,  1910  Sess  Cas. 
79  (Scotland),  where  it  was  held  that  it  was  not  actionable  wrong  for  an 
insurance  company  to  include  the  plaintiff's  name  in  a  published  list  of  per- 
sons not  to  be  employed  by  manufacturers  insuring  with  it  against  risks 
under  the  Workmen's  Compensation  Act.  the  plaintiff  being  thereby  de- 
prived of  all  chance  of   employment. 


1254  GRAHAM    Z'.    ST.    CHARLES    STREET    R.    CO. 

would  control  not  only  their  own  will,  action  and  conduct,  but  forci- 
bly control  and  change  from  pure  motives  of  malice  the  choice  and 
will  of  others  through  fear  of  non-employment  or  discharge.  This 
will  and  power  of  choice,  both  the  plaintiff  and  the  parties  them- 
selves are  entitled  to  have  left  free,  and  not  have  coerced,  in  order 
simply  to  work  the  former,  damage  and  injury. 

In  Longshore  Printing  and  Publishing  Company  v.  Hozvell,  38 
Pacific  Reporter,  553,  the  court  said  "every  man  has  a  right  to  re- 
quire that  he  be  protected  in  his  property  rights,"  and  quotes  ap- 
provingly and  correctly  a  citation  to  the  effect  that  "the  labor  and 
skill  of  the  workman  or  the  professional  man — be  it  of  high  or  low 
degree — the  plant  of  a  manufacturer,  the  equipment  of  a  farmer, 
the  investments  of  commerce,  are  all  in  equal  sense  property." 

In  Dels  V.  Winfree  et  al.,  decided  by  the  Supreme  Court  of 
Texas,  16  Southwestern  Reporter,  112,  the  court  said:  "Every  rrian 
has  a  right  to  use  the  fruits  and  advantages  of  his  own  enterprise, 
skill  and  credit.  He  has  no  right  to  be  protected  against  competi- 
tion, but  he  has  the  right  to  be  protected  from  malicious  and  wanton 
interference,  disturbance  or  annoyance.  If  the  disturbance  or  loss 
come  as  a  result  of  competition,  or  the  exercise  of  like  rights  by 
others,  it  is  damnum  absque  injuria,  unless  some  superior  right,  by 
contract  or  otherwise,  is  interfered  with. 

"But  if  it  comes  from  merely  wanton  or  malicious  acts  of 
others,  without  the  justification  of  competition  or  service  of  any  in- 
terest or  lawful  purpose,  it  then  stands  upon  a  different  footing." 

"In  the  case  at  bar  defendant  has  committed  the  error  of  en- 
larging a  right  into  a  wrong,  and  applying  to  it  the  maxim  'Neminem 
laedit  qui  jure  sua  ntitur.' " 

In  dealing  with  the  question  before  us,  we  could  entirely  dis- 
regard, as  a  mere  incident  or  accident  of  the  case,  the  particular  in- 
strumentality by  and  through  which  the  alleged  damage  and  injury 
to  plaintiff  was  inflicted.  If  it  was  accomplished  under  circum- 
stances such  as  to  give  rise  to  a  legal  liability,  it  would  matter  little 
whether  it  was  through  the  power  and  influence  which  an  employer 
can  bring  to  bear  upon  the  conduct  and  actions  of  his  actual  or  pros- 
pective employees  or  through  some  other  means. 

For  the  purposes  of  this  opinion,  we  have  taken  up  and  fol- 
lowed the  line  of  discussion  and  argument  adopted  and  presented  by 
both  sides,  and  passed  upon  the  general  legal  proposition  advanced 
by  plaintiff  and  disputed  by  defendant,  without  subjecting  plaintiff's 
petition  as  to  its  exact  language  and  arrangement  to  the  strictest 
rules  of  pleading.  From  that  standpoint  it  is  open  to  some  criticism, 
but  we  have  viewed  it  as  substantially  raising  the  issues  presented 
in  the  briefs. 

We  do  not  undertake  to  lay  down  any  general  rule  by  which 
should  be  ascertained  and  tested  the  righc  of  one  man  to  control  and 
direct  against  his  will  the  action  and  conduct  of  another  to  the  injury 
and  prejudice  of  third  persons  under  the  different  relations  and 
varying  conditions  of  life.  We  do  not  mean  for  an  instant  to  say 
that  defendants  may  not,  on  the  trial  of  this  case  upon  the  merits, 


I 


GRAHAM    Z'.    ST.    CHARLES    STREET    R.    CO.  I255 

justify  any  conduct  which  they  may  have  pursued  in  respect  to  the 
plaintiff.  We  simply  say  that  the  whole  matter  should  be  thrown 
open  to  inquiry  and  investigation. 

In  the  case  of  Del::  v.  IVinfree,  cited  above,  counsel  laid  down 
a  proposition  which  the  court  said  might  be  conceded  as  correct,  to 
the  effect  that  ''a  person  has  an  absolute  right  to  have  business  rela- 
tions with  any  person  whomsoever,  whether  the  refusal  is  based 
upon  reason  or  is  the  result  of  whim,  caprice,  prejudice  or  malice, 
and  there  is  no  law  which  forces  a  man  to  part  with  his  title  to  his 
property,"  but  it  declared  that  "the  privilege  here  asserted  must  be 
limited,  however,  to  the  individual  action  of  the  party  who  asserts 
the  right.  It  is  not  equally  true  that  a  person  may  from  such  mo- 
tives influence  another  person  to  do  the  same.  If  without  such  mo- 
tive, the  cause  of  one  person's  interference  with  the  property  or 
privilege  of  another  is  to  serve  some  legitimate  right  or  interest  of 
his  own,  he  may  do  acts  himself,  or  cause  other  persons  to  do  them, 
that  injuriously  aft'ect  a  third  party  so  long  as  no  definite  legal  right 
of  such  third  party  is  violated.  In  the  case  of  Walker  v.  Cronin, 
107  Mass.'  562,  it  was  recognized  to  be  a  general  principle  that  "in 
all  cases  where  a  man  has  a  temporal  loss  or  damage  by  the  wrong 
of  another,  he  may  have  an  action  upon  the  case  to  be  repaired  in 
damages.  The  intentional  causing  of  such  loss  to  another  without 
justifiable  cause,  and  with  malicious  purpose  to  inflict  it,  is  of  itself 
a  wrong." 

We  are  of  the  opinion  that  the  exception  of  ho  cause  of  action 
should  have  been  overruled  and  the  parties  should  have  been  made 
to  go  to  trial  on  the  merits.  It  is  ordered,  adjudged  and  decreed 
that  the  judgment  appealed  from  is  annulled,  avoided  and  reversed, 
and  that  the  exception  of  no  cause  of  action  filed  by  the  defendant 
in  the  District  Court  be  and  the  same  is  hereby  overruled,  and  this 
cause  is  ordered  to  be  remanded  to  the  lower  court  for  further  pro- 
ceedings according  to  law.^ 


"■Accord:  Wesley  v.  Native  Lumber  Co.,  97  Miss.  814  (1910),  and  see 
Dapseus  v.  Lambert,  Cour  d'Appcl  de  Liege.  (Feb.  9,  1898),  Sirey  1890,  4, 
14,  and  see  Leivis  v.  Huie-Hodge  Lumber  Co.,  121  La.  658  (1908),  §  3  of 
"Svllabiis  by  the  Court"';  and  Professor  James  Barr  Ames,  18  Harv.  L. 
R.'417. 

Contra:  Payne  v.  Western,  etc.,  R.  Co.,  13  Lea  507  (Tcnn.  1884),  very 
similar  facts;  Guethler  v.  Altman,  26  Ind.  App.  587  (1901),  a  declaration, 
alleging  that  a  school  teacher  had  maliciously  and  without  cause,  by  per- 
suasion and  intimidation  through  threats  of  suspension,  prevented  the  school 
children  from  patronizing  the  plaintiff's  shop,  was  held  to  show  no  cause 
of  action;  and  compare  Heywood  v.  Tillson,  75  Maine  225  (1883).  See 
also,  Union  Labor  Hospital  v.  Vance  Co.,  158  Cal.  551  (1910),  and 
Banks  V.  Eastern  Ry..  etc.,  Co.,  46  Wash.  610  (1907),  actions  by  hospitals 
against  employers  refusing  to  put  them  on  the  list  of  hospitals  from  which 
the  workmen,  if  ill  or  injured,  might  select  one  at  which  he  would  be 
treated  without  further  charge,  a  part  of  the  workmen's  wages  being  de- 
ducted from  their  pay,  and  the  fund  so  collected  paid  to  the  hospitals  caring 
for  the  workmen,  the  deduction  of  wages  being  obligatory  but  the  workmen 
free  to  go  to  any  hospital  he  liked,  though  if  he  went  to  one  not  on  the  list, 
he  would  not  be  entitled  to  free  treatment.  In  International,  etc.,  R.  Co.  v. 
Greemvoodj  2  Tex.  Civ.  App.  76  (1893),  a  curious  distinction  is  drawn  be- 


1256  GRAHAM    V.    ST.    CHARLES    STREET    R.    CO. 

The  case  having  been  subsequently  tried  on  its  merits,  a  verdict 
and  judgment  for  one  hundred  and  seventy-five  dollars  was  awarded 
and  the  defendants  appealed. 

Miller,  J.  (After  holding  that  the  acts  of  the  defendant,  New- 
man, were  not  within  the  line  of  his  employment  as  foreman  and 
that  therefore  the  defendant  company  was  not  liable  for  the  harm 
done  by  them.)  With  reference  to  the.  foreman  we  think  the  case 
is  different.  The  ground  of  his  liability  is  that  from  motives  of  ill 
will,  by  words  and  conduct,  he  injured  plaintiff's  business,  by  pre- 
venting the  employees  from  buying  at  his  store.  Our  review  of  the 
testimony  satisfies  us  that  the  foreman  urged  a  number  of  the  em- 
ployees not  to  deal  with  plaintiff',  threatened  them  with  discharge 
if  they  did  so ;  raised  the  rent  of  premises  he  leased  to  one  of  the 
employees  who  dealt  with  Graham,  assigning  that  as  the  cause  for 
the  increase ;  for  the  same  reason,  it  is  our  conclusion  from  the  tes- 
timony, he  gave  another  tenant  of  his  notice  to  quit,  and  as  to  two 
instances  of  discharge,  the  testimony  strongly  points  for  the  cause  to 
the  fact  that  the  discharged  men  bought  of  plaintiff.  We  have  given 
attention  to  that  of  the  foreman,  that  he  never  gave  orders  to  the 
men  not  to  deal  with  plaintiff,  and  that  his  motive  was  to  prevent 
drinking  by  the  men  during  the  hours  of  service.  W^e  have  con- 
sidered the  testimony  of  the  employees,  produced  by  the  defendant, 
that  they  dealt  with  plaintiff  and  were  not  discharged;  that  there 
were  posted  in  the  station  stringent  rules  against  drinking  by  the 
employees,  but  a  careful  consideration  of  the  testimony  impresses 
us,  as  we  must  conclude  it  did  the  jury,  that  the  defendant  did 
use  efforts  to  divert  employees  from  dealing  with  the  plaintiff,  and 
that  his  motive  was  not  to  enforce  the  rules  or  discipline  of  the 
company.- 

The  fact  that  the  defendant's  tenant  had  a  grocery  in  the  neigh- 
borhood, apt  to  be  benefited  by  a  diversion  of  plaintiff's  customers, 
supplies  the  motive  of  interest,  but  does  not,  in  our  view,  at  all  miti- 
gate his  conduct.  With  all  reasonable  allowance  for  the  competi- 
tions of  trade  and  the  means  by  which  the  shopkeeper  or  merchant 
obtains  business,  words  and  actions  to  discredit  it  and  injure  a  rival 
in  business  can  not  be  tolerated."     The  circumstance  that  the  de- 


nveen  threats  to  discharge  an  employee  if  he  patronizes  the  plaintift's  sa- 
loon, which,  if  effective,  are  said  to  be  actionable,  and  the  giving  of  notice 
that  the  defendant  would  not  emploj^  any  one  who  did  so,  which  was  held  to 
be  within  his  legal  rights. 

^  Had  such  been  his  motive,  his  efforts  to  prevent  his  employees  from 
dealing  with  the  plaintiff  would  have  been  justified,  if  the  means  used  were 
not  in  themselves  wrongful,  Reding  v.  Kroll,  Trib  de  Luxembourg  (Oct.  2, 
1896),  Sirey  1898,  4,  16,  defendant  held  justified  in  forbidding  his  employees, 
under  pain  of  discharge,  from  frequenting  the  plaintiff's  saloon,  because 
of  its  demoralizing  effect  on  them;  Gott  v.  Berea  College,  161  S.  W.  204 
(Ky.  1913),  trustee  of  a  college,  largely  supported  by  charity  and  designed 
to  furnish  education  to  persons  of  small  means,  forbade  the  students,  under 
penaltv  of  expulsion,  "entering  eating  houses  or  places  of  amusement  not 
under'the  control  of  the  college";  Jones  v.  Cody,  132  Mich.   13   (1902). 

■'Contra:  Robison  v.  Texas  Pine  Land  Assn.,  40  S.  W.  843  (Tex.  Civ. 
App.  1897),  where  it  was  held  not  actionable  for  the  defendant,  who  main- 


MAC  AULEY    BROTIIKRS    t'.    TIERXEY, 


1257 


fendant  as  the  foreman  of  the  company  had  the  power  to  discharge 
those  designed  to  be  influenced  by  his  communications  or  statements 
with  respect  to  the  plaintiff,  and  that  defendant  had  the  selection  of 
the  labor  of  the  company,  tended  to  make  more  effective  his  efforts 
to  injure  plaintiff  in  his  business.  W'e  recognize  the  principle  urged 
by  the  defence,  that  the  employer  has  the  right  to  employ  those  he 
chooses,  and  the  same  liberty  is  allowed  as  to  their  discharge.  The 
authority  cited  by  defendant  is  entitled  to  full  recognition,  that  one 
may  do  business  with  those  he  chooses  to  deal  with,  and  decline,  if 
he  pleases,  the  business  of  others.  Orr  v.  Insurance  Co.,  12  An.  255. 
It  is  not  the  exercise  of  defendant's  choice  in  selecting  or  discharg- 
ing laborers  for  the  company  that  makes  him  liable,  but  he  is  respon- 
sible, because,  in  exercising  that  right,  he  indulges  in  language,  uses 
threats,  and  pursues  a  line  of  conduct  all  directed  at  the  plaintiff, 
and  of  a  character  to  injure  him  in  his  lawful  business. 

It  is  therefore  ordered,  adjudged  and  decreed  that  the  judgment 
of  the  lower  court  against  the  company  be  avoided  and  reversed, 
and  that  the  judgment  against  Thomas  Newman  be  affirmed,  and 
that  he  pay  costs. 


I^ACAULEY  BROTHERS  v.  TIERNEY. 

Supreme  Court  of  Rhode  Island,  1895.     19  R.  I.  255. 

Matteson,  C.  J.  The  complainants  proceed  on  the  theory  that 
they  are  entitled  to  protection  in  the  legitimate  exercise  of  their 
business ;  that  the  sending  of  the  notices  to  wholesale  dealers  not  to 
sell  supplies  to  plumbers  not  members  of  the  association,  under  the 
penalty,  expressed  in  some  instances  and  implied  in  others,  of  the 
withdrawal  of  the  patronage  of  the  members  of  the  associations  in 
case  of  a  failure  to  comply,  was  unlawful,  because  it  was  intended 
injuriously  to  affect  the  plumbers  not  members  of  the  association  in 
the  conduct  of  their  business,  and  must  necessarily  have  that  effect. 
It  is  doubtless  true,  speaking  generally,  that  no  one  has  a  right  in- 
tentionally to  do  an  act  with  the  intent  to  injure  another  in  his  busi- 
ness. Injury,  however,  in  its  legaT sense," means  damage  resulting 
from  a  violation  ol,aJ£gal  right.  It  is  this  violation  of  a  legal  right 
which  renders  the  act  wrongful  in  the  eye  of  the  law  and  makes  it 

tained  a  "company  store,"  to  threaten  to  discharge  its  employees  if  they  pat- 
ronized the  plaintiff's  competing  store  and  to  warn  them  that  their  non- 
transferable pay  checks  would  not  be  honored  if  they  passed  through  the 
plaintiff's  hands  for  goods  bought  of  him;  Lewis  v.  Huic-Hodge  Lumber 
Co.,  121  La.  658  (1908),  threats  to  discharge  employees  who  patronized  the 
plaintiff's  store  run  in  competition  with  the  defendants'  "company  store," 
distinguishing  the  principal  case  on  the  grpund  that  the  defendant  New- 
man "had  no  legal  right  to  exert  the  power  of  his  official  position  over  the 
employees  of  his  employer  for  his  own  private  advantage,  to  the  prejudice 
of  (the  plaintiff)  Graham"  and  because  the  men  on  whom  he  exerted  the 
pressure  "were  not  his  own  employees  but  those  of  the  railroad  company, 
whom  he  had  only  the  right  to  discharge  or  refuse  to  employ  for  reasons 
connected  with  the  business  and  interests  of  that  company." 


1250  MAC  AULEY    BROTHERS    V.    TIERNEY, 

actionable.  If,  therefore,  there  is  a  legal  excuse  for  the  act  it  is  not 
wrongful,  even  though  damage  may  result  from  its  performance. 
The  cause  and  excuse  for  the  sending  of  the  notices,  it  is  evident, 
was  a  selfish  desire  on  the  part  of  the  members  of  the  association  to 
rid  themselves  of  the  competition  of  those  not  members,  with  a  view 
to  increasing  the  profits  of  their  own  business.  The  question,  then, 
resolves  itself  into  this :  Was  the  desire  to  free  themselves  from 
competition  a  sufficient  excuse  in  legal  contemplation  for  the  send- 
ing of  the  notices  ? 

We  think  the  question  must  receive  an  affirmative  answer. 
Competition,  it  has  been  said,  is  the  life  of  trade.  Every  act  done 
by  a  trader  for  the  purpose  of  diverting  trade  from  a  rival  and  at- 
tracting it  to  himself  is  an  act  intentionally  done  and,.-in  so  far  as  it 
is  successful,  to  the  injury  of  the  rival  in  his  business,  since  to  that 
extent  it  lessens  his  gains  and  profits.  To  hold  such  an  act  wrong- 
ful and  illegal  would  be  to  stifle  competition.  Trade  should  be  free 
and  unrestricted :  and  hence  every  trader  is  left  to  conduct  his  busi- 
ness in  his  own  way,  and  cannot  be  held  accountable  to  a  rival  who 
suffers  a  loss  of  profits  by  anything  he  may  do,  so  long  as  the  meth- 
ods he  employs  are  not  of  the  class  of  which  fraud,  misrepresenta- 
tion,  intimidation,  coercion,  obstruction  or  molestation  of  the  rival 
or  his  s  e  r  V  an  t  Sjo^lSjiQ  r  km  eh ,  and  the  procurement  of  violation  of 
contractual  relations^  are  instances.  A  leading  and  well  considered 
case  on  this  subject  was  the  Mogul  Steamship  Co.  v.  McGregor. 
(The  opinion  then  discusses  that  case  and  quotes  from  the  opinion 
of  Bowen  L.  J.  therein.)  The  case  at  bar  contains  no  element  of  the 
character  of  those  enumerated  by  the  Lord  Justice  which  are  forbid- 
den by  law,  unless  the  threat  of  the  withdrawal  of  patronage  may 
be  considered  as  amounting  to  coercion.  We  do  not  think,  how- 
ever, that  such  a  threat  can  be  regarded  as  coercive  within  a  legal 
sense ;  for,  though  coercion  may  be  exerted  by  the  application  of 
moral  as  well  as  physical  force  the  moral  force  exerted  by  the  threat 
was  a  lawful  exercise  by  the  members  of  the  associations  of  their 
own  rights,  and  not  the  exercise  of  a  force  violative  of  the  rights  of 
others  as  in  the  cases  cited  by  the  Lord  Justice.  It  was  perfectly 
competent  for  the  members  of  the  association,  in  the  legitimate  exer- 
cise of  their  own  business  to  bestow  their  patronage  on  whomsoever 
they  chose,  and  to  annex  any  condition  to  the  bestowal  which  they 
saw  fit.  The  wholesale  dealers  were  free  to  comply  with  the  condi- 
tion or  not,  as  they  saw  fit.  If  they  valued  the  patronage  of  the 
members  of  the  associations  more  than  that  of  the  non-members, 
they  would  doubtless  comply ;  otherwise  they  would  not. 

Closely  analogous  to  the  case  at  bar  was  the  recent  case  of 
Bohn  Mfg.  Co.  v.  Mollis,  54  Minn.  223.  The  plaintiff  was  a  manu- 
facturer and  seller  of  lumber,  having  a  large  and  profitable  trade, 
both  wholesale  and  retail,  m  Minnesota  and  the  adjoining  States. 
The  defendants,  comprising  from  twenty-five  to  fifty  per  cent,  of 
the  retail  lumber  dealers  in  the  States  referred  to,  many  of  whom 
were  or  had  been  customers  of  the  plaintiff,  formed  an  association 
under  the  name  of  the  North  Western  Lumbermen's  Association, 


MAC  AULEV    BROTHERS    7'.    TIERNEY.  I259 

for  the  protection  of  its  members  against  sales  by  wholesale  dealers 
and  manufacturers  to  contractors  and  consumers,  by  which  they 
mutually  agreed  that  they  would  not  deal  with  any  manufacturer 
or  wholesale  dealer  who  should  sell  lumber  directly  to  consumers 
not  dealers  at  any  point  where  a  member  of  the  association  was  car- 
rying on  a  retail  yard.  The  by-laws  provided  that  any  members  of 
the  association  doing  business  in  the  town  to  which  lumber  thus  sold 
by  a  manufacturer  or  wholesale  dealer  had  been  shipped  should 
notify  the  secretary  of  the  association,  within  thirty  days  after  the 
arrival  of  the  shipment  at  its  destination,  who  should  thereupon 
notify  the  manufacturer  or  wholesale  dealer  by  whom  the  shipment 
had  been  made  that  he  had  a  claim  against  him  for  ten  per  cent,  of 
the  value  of  such  sale  at  the  point  of  shipment ;  that  if  the  secretary 
should  be  unable  to  obtain  payment  he  should  refer  the  matter  to 
the  directors,  who  should  hear  and  determine  the  claim ;  that  if  the 
manufacturer  or  dealer  refused  to  abide  by  the  decision  of  the  di- 
rectors, it  should  be  the  duty  of  the  secretary  to  immediately  notify 
the  members  of  the  association  of  the  name  of  the  manufacturer  or 
dealer  and  that  he  refused  to  comply  with  .the  rules  of  the  associa- 
tion ;  that  if  any  member  continued  to  deal  with  such  manufacturer 
or  wholesale  dealer  he  should  be  expelled  from  the  association ;  that 
whenever  the  secretary  of  the  association  should  succeed  in  collect- 
ing any  such  claim,  the  sum  collected  should  be  paid  to  the  member 
or  members,  in  equal  shares,  doing  business  at  the  place  of  the  sale. 
The  plaintiff  sold  two  bills  of  lumber  directed  to  consumers  or  con- 
tractors at  points  where  members  of  the  association  were  engaged 
in  business.  The  secretary  of  the  association,  having  been  informed 
of  the  fact,  notified  the  plaintiff",  in  pursuance  of  the  provision  of 
the  by-laws,  that  he  had  a  claim  against  him  for  ten  per  cent,  of  the 
amount  of  the  sales.  Considerable  correspondence  with  reference 
io  the  matter  ensued,  in  which  the  plaintiff'  from  time  to  time  prom- 
ised to  adjust  the  claim,  but  procrastinated  and  avoided  doing  so 
until  finally  the  secretary  threatened  unless  the  claim  was  immedi- 
ately settled  to  send  the  notice  provided  by  the  by-laws  to  all  the 
members  of  the  association.  Thereupon  the  plaintiff  brought  its 
suit  for  an  injunction.  An  ex  parte  injunction  having  been  granted, 
the  defendants  obtained  an  order  for  the  complainants  to  show  cause 
why  it  should  not  be  dissolved.  The  court  refused  to  dissolve  the 
injunction,  but  on  appeal  the  order  continuing  the  injunction  was 
reversed.  The  court  says,  "Now,  when  reduced  to  its  ultimate 
analysis,  all  that  the  retail  lumber  dealers  in  this  case  have  done  is 
to  form  an  association  to  protect  themselves  from  sales  by  whole- 
sale dealers  or  manufacturers,  directly  to  consumers  or  other  non- 
dealers  at  points  where  a  member  of  the  association  is  engaged  in 
the  retail  business.  The  means  adopted  to  affect  this  object  are 
simply  these :  They  agree  among  themselves  that  they  will  not  deal 
with  any  wholesale  dealer  or  manufacturer  who  sells  directly  to 
customers,  not  dealers,  at  a  point  where  a  member  of  the  association 
is  doing  business,  and  provide  for  notice  being  given  to  all  their 
members  whenever  a  wholesale  dealer  or  manufacturer  makes  any 


I26o  MAC  AULEY    BROTHERS    V.    TIERXEY. 

such  sale.  That  is  the  head  and  front  of  defendant's  offence.  It 
will  be  observed  that  defendants  were  not  proposing  to  send  notice 
to  any  one  but  members  of  the  association.  There  was  no  element 
of  fraud,  coercion,  or  intimidation,  either  towards  the  plaintiff  or 
the  members  of  the  association.  True,  the  secretary,  in  accordance 
with  section  3  of  the  by-laws,  made  a  demand  on  plaintiff  for  ten 
per  cent,  on  the  amount  of  the  two  sales.  But  this  involved  no  ele- 
ment of  coercion  or  intimidation,  in  the  legal  sense  of  those  terms. 
It  was  entirely  optional  with  plaintif?  whether  it  would  pay  or  not. 
If  it  valued  the  trade  of  the  members  of  the  association  higher  than 
that  of  non-dealers  at  the  same  points,  it  would  probably  conclude 
to  pay;  otherwise  not.  It  cannot  be  claimed  that^tlie  act  of  making 
this  demand  was  actionable  ;  much  less  that  it  constituted  any  ground 
for  an  injunction ;  and  hence  this  matter  may  be  laid  entirely  out  of 
view.  Nor  was  any  coercion  proposed  to  be  brought  to  bear  on  the 
members  of  the  association  to  prevent  them  from  trading  with  the 
plaintiff.  After  they  received  the  notice,  they  would  be  at  entire 
liberty  to  trade  with  plaintiff  or  not,  as  they  saw  fit.  By  the  pro- 
visions of  the  by-laws,  if  they  traded  with  the  plaintiff  they  were 
liable  to  be  'expelled ;'  but  this  simply  meant  to  cease  to  be  mem- 
bers. It  was  wholly  a  matter  of  their  own  free  choice  which  they 
preferred, — to  trade  with  the  plaintiff  or  to  continue  members  of 
the  association."  See  also  Paine  v.  Western  &  Atlantic  R.  R.  Co., 
81  Tenn.  507,  514-519;  Cote  v.  Murphy,  159  Pa.  St.  420,  421 ;  Hey- 
zvood  V.  Tillson,  75  Me.  225,  233. 

It  only  remains  to  notice  the  charge  of  conspiracy  contained 
in  the  bill,  upon  which  considerable  stress  has  been  laid  as  thougli 
the  fact  that  the  action  of  the  members  of  the  associations  was  in 
pursuance  of  a  combination  entitled  the  complainants  to  relief.  To 
maintain  a  bill  on  the  ground  of  conspiracy,  it  is  necessary  that  it 
should  appear  that  the  object  relied  on  as  the  basis  of  the  con- 
spiracy, or  the  means  used  in  accomplishing  it,  were  unlawful. 
What  a  person  may  lawfully  do  a  number  of  persons  may  unite  with 
him  in  doing  without  rendering  themselves  liable  to  the  charge  of 
conspiracy,  provided  the  means  employed  be  not  unlawful.  The 
object  of  the  members  of  the  association  was  to  free  themselves 
from  the  competition  of  those  not  members,  which,  as  we  have  seen, 
is  not  unlawful.  The  means  taken  to  accomplish  that  object  were 
the  agreement  among  themselves  not  to  deal  with  wholesale  dealers 
who  sold  to  those  not  members  of  the  associations,  and  the  sending 
of  notices  to  that  end  to  the  wholesalers.  This,  as  we  have  also 
seen,  was  not  unlawful.  Hence,  it  follows  that,  as  the  object  of  the 
combination  between  the  members  of  the  association  was  not  unlaw- 
ful, nor  the  means  adopted  for  its  accomplishment  unlawful,  there 
is  no  ground  for  the  charge  of  conspiracy,  and  the  fact  of  combina- 
tion is  wholly  immaterial.^ 


^Accord:  Scottish  Co-operative  Wholesale  Society  v.  Glasgow  Fleshers' 
Assn.,  35  Scottish  L.  Reporter  645  (1898),  an  association  of  wholesale 
butchers  notified  auctioneers  that  they  would  bid  at  no  sale,  at  which  bids 
from  co-operative  stores  were  received,  in  consequence  the  auctioneers   re- 


JACKSON    Z\    STAXFIELD.  I26I 

V  "JACKSON  v.  STANFIELD  et  aL 

Supreme  Court  of  Indiana.  1893.     137  Ind.  592. 

The  special  findings  of  fact  showed  in  substance  that  the  plain- 
tiffs, Newtonjackson-and  liis  wife  Martha,  were  engaged  in  the 
business  of^uymg  and  selling  lumber  sometimes  on  their  own  ac- 
count, sometimes" on  commission,  that  they  had  no  lumber  yard  or 
stock  on  hand  in  the  place  where  they  did  business.  That  the  de- 
fendants and  other  lumber  dealers,  about  one  hundred  and  fifty  in 
luunber,  formed  an  association  having  by-laws  which  provided,  inter 
alia  ( I )  that  any  lumber  dealer  owning  or  operating  a  lumber  yard, 

fused  to  receive  bids  from  such  stores.  Recovery  of  damages  was  denied 
since  the  Fleshers  "did  not  act  wholly  from  malice'  but  at  least  m  part  from 
a  regard  to  their  own  interest;"  Transportation  Co.  v.  Standard  Oil  Co 
50  W.  Va.  611  (1902),  defendants,  to  mcrease  the  trade  of  a  pipe^lme  owned 
by  them,  refused  to  buy  or  refine  oil  shipped  by  the  plaintiffs'  competmg 
line  or  to  permit,  by  means  not  stated,  others  to  do  so,  or  to  lease  oil  lands 
to  persons  who  so  shipped;  Continental  Ins.  Co.  v.  Board  of  Fire  Undcr- 
ziTiters  of  the  Pacific,  67  Fed.  310  (1895),  threats  to  dismiss  agent  unless 
he  represented  exclusively  the  companies  who  were  members  of  the  board — 
threats  to  "boycott,"  by  means  not  stated,  customers  of  the  plaintifif,  were, 
however,  held  to  be  illegal;  Roseneau  v.  Empire  Circuit  Co.,  131  N.  Y.  App. 
Div.  429  (1909),  defendant,  a  corporation  owning  the  principal  burlesque 
theaters  in  the  most  important  towns,  refused  to  book  shows  which  did 
not  agree  to  appear  only  at  its  theaters,  thus  preventing  the  plaintiff,  an 
independent  theater,  from  booking  shows  and  causing  burlesque  companies 
already  under  contract  with  it  to  break  such  contracts,  see  also,  Russell 
V.  New  York  Produce  Exchange,  58  N.  Y.  S.  842  (1899),  and  Park  &  Sons 
Co.  V.  National  Wholesale  Druggists'  Assn.,  175  N.  Y.  1  (1903),  where 
manufacturers,  wholesalers  and  jobbers  combined  to  prevent  price  cutting 
by  agreeing  that  rebates  would  be  given  to  jobbers  who,  as  members  of  their 
association,  agreed  to  sell  and  sold  only  to  dealers  who  maintained  prices, 
all  other  jobbers  or  dealers  being  allowed  to  buy  but  receiving  no  rebate. 
In  Lewis  v.  Huie-Hodge  Co.,  121  La.  658  (1908),  it  was  held  that  the  de- 
fendant was  not  guilty  of  actionable  wrong  toward  the  plaintiff,  whose 
store  competed  with  its  "company  store,"  in  threatening  persons  selling  to 
the  plaintiff  that  they  would  not  buy  from  them  unless  they  ceased  to  do  so. 
The  right  to  refuse,  alone  or  in  concert  with  others,  to  deal  with  any 
one,  for  anv  or  no  reason,  is  strongly  asserted  in  Reynolds  v.  Plumbers' 
Assn.,  30  M'isc.  (N.  Y.)  709  (1900),  where  the  defendant  sent  to  its  mem- 
bers a  notice  not  to  sell  or  credit  to  the  plaintiff,  in  pursuance  of  a  by-law 
which  forbade,  under  penalty  of  expulsion,  members  to  give  credit  to  a 
customer  of  any  member  who  had  refused  to  settle  a  claim  of  such  mem- 
ber, or  in  case  of  dispute,  to  give  the  association  the  reasons  for  his  refusal 
or  submitted  the  controversy  to  arbitration,  and  Breivstcr  v.  Miller,  101 
Ky.  368  (1897),  where  the  by-laws  of  an  association  of  all  the  undertakers 
in  Louisville,  forbidding  its  members,  under  penalty  of  expulsion,  from 
serving  any  one  against  whom  any  member  had  an  unpaid  claim,  the  plain- 
tiff was  unable  to  procure  the  services  of  an  undertaker  for  the  burial  of 
his  wife,  it  was  held  that  no  action  lay,  though  had  the  plaintiff  paid  the 
claim,  it  not  being  due  and  owing,  in  order  to  procure  such  services  he 
could  have  recovered  it  back  in  an  action  of  indebitatus  assumpsit  as 
money  "tortiously"  obtained,  compare  Schultcn  v.  Bavarian  Brewing  Co., 
96  Ky.  224  (1894),  where,  as  in  Ulery  v.  Chicago  Live  Stock  Exchange,  54 
111.  App.  233  (1894),  there  was  no  allegation  of  any  by-law,  threatening 
with  expulsion  or  other  penalty  a  member  of  the  combination  or  association 
breaking  the  agreement  or  disobeying  the  direction  not  to  deal  with  the 
ll;>.intiff  because  he  had  not  paid   a  member's  claim,  and  where  it  is  inti- 


1262  JACKSOX    Z'.    STANFIELD. 

in  which  a  stock  of  lumber  commensurate  with  the  local  demand  is 
kept  for  sale,  is  eligible  for  membership  but  forfeits  his  membership 
when  he  ceases  to  keep  such  stock.  (2)  That  any  manufacturer 
or  wholesale  dealer  may  become  an  honorary  member,  forfeiting 
such  membership  if  he  violates  the  rules  of  the  association.  In  sec- 
tion 3,  that  whenever  any  manufacturer  or  wholesale  dealer  shall  sell 
lumber  to  any  person  not  a  merriber  of  the  association,  any  member 
doing  business  in  the  place  to  which  the  shipment  is  made  may  no- 
tify such  manufacturer,  etc.,  that  he  has  a  claim  against  him  for 
such  shipment.  "If  the  parties  cannot  adjust  it,  it  is  made  the  duty 
of  the  member  to  notify  the  secretary  of  the  facts  in  the  case,  who 
shall  refer  the  matter  to  the  executive  committee,  whose  duty  it  is 
to  hear  the  grievances  and  determine  the  claim.  If  the  wholesaler 
or  manufacturer  ignores  the  decision  of  the  committee,  it  is  the  duty 
of  the  secretary  to  notify  the  members  of  the  association  of  the 
name  of  the  person  so  offending  and  of  the  members  to  no  longer 
patronize  him.  If  they  continue  to  deal  with  the  offender  they 
shall  be  expelled  from  the  association,  and  if  any  member  refuses 
to  abide  by  the  decision  of  the  executive  committee  his  name  is  to 
be  stricken  from  the  membership  of  the  society.  They  also  showed 
that  the  West  Michigan  Lumber  Co.  having  sold  to  the  plaintiffs 
was  fined  $100,  which  after  considerable  correspondence  it  paid,  and 
thereafter  refused  to  sell  to  the  plaintiffs. 

Dailey,  J.  This  is  an  action  brought  by  the  appellants  against 
the  appellees  for  damages  and  for  relief  by  injunction,  on  the  ground 
that  the  defendants  had  entered  into  an  unlawful  combination  for 
the  purpose  of  injuring  the  appellees  in  their  business,  and  that,  in 
consequence  thereof,  plaintiffs  had  suffered  actual  damage,  and  were 
threatened  with  great  loss  in  their  business. 

By  request  of  the  parties,  the  court  below  made  a  special  find- 
ing of  the  facts,  and  stated  its  conclusion  of  the  law  thereon,  and 
the  plaintiffs  were  not  entitled  to  recover. 

There  was  no  motion  for  a  new  trial,  and  the  only  questions 
presented  by  the  record  are  these : 


mated  that  such  a  combination  to  force  the  plaintiff  to  pay  a  claim  not  justly 
due  would  be  wrongful. 

Compare  with  the  principal  case,  Orr  v.  Home  Mutual  Ins.  Co.,  12  La. 
Ann.  255  (1857),  demurrer  sustained  to  a  declaration  alleging  that  certain 
insurance  companies  had  conspired  to  refuse,  maliciously  and  without  any 
cause  other  than  the  freight  rates  charged  by  the  plaintiff,  to  insure  any- 
thing in  any  steamboat  employing  him,  whereby  he  was  discharged  from 
his  berth  as  captain  of  a  certain  boat  and  was  unable  to  obtain  other  em- 
ployment; and  with  Bohn  Mfg.  Co.  v.  Mollis,  compare  Hunt  v.  Simonds, 
19  Mo.  583  (1854),  demurrer  sustained  to  a  declaration  alleging  a  similar 
conspiracy  for  the  purpose  of  ruining  the  plaintiff  in  his  business  of  steam- 
boat owner,  by  refusing  to  insure  his  boat,  and  Baker  v.  Metropolitan  Life 
Ins.  Co.,  64  S.  W.  913  (Ky.  1901),  and  Trimble  v.  Prudential  Life  Ins.  Co., 
64  S.  W.  915  (1901),  in  each  of  which  the  plaintiff,  an  employee  at  will,  was 
discharged  by  an  insurance  company  in  pursuance  of  an  agreement  between 
such  companies  that  no  one  of  them  would  employ  any  person  within  two 
years  of  the  time  when  he  had  left  the  service  of  any  other.  The  agree- 
ment, it  was  said,  being  against  public  policy  and  not  obligatory,  the  act  of 
the  plaintiff's  employer  in  discharging  him  was  voluntary. 


JACKSOX    v.    STAXFIELD.  I263 

First.    Whether  the  plaintiffs  are  entitled  to  an  injunction? 

Second.  If  not  entitled  to  an  injunction,  are  they  entitled  to 
recover  damages? 

The  facts  found  by  the  court  disclose  that  the  appellees,  as 
members  of  the  combination  complained  of,  availed  themselves  of 
the  means  provided  for  in  section  three  to  destroy  tlie  business  of 
the  appellants  as  brokers  in  lumber,  because  they  were  not  retail 
dealers  within  the  definition  of  the  term,  and  that  they  effectuated 
their  purpose. 

The  special  findings  of  fact  clearly  show  it  to  be  a  compact  to 
suppress  the  competition  of  those  dealers  who  did  not  own  yards, 
with  an  adequate  stock  on  hand,  by  driving  them  out  of  business. 
By  this  plan  they  reach  the  wholesale  dealer,  and  compel  him  to  pay 
an  arbitrary  penalty  under  a  threat  of  financial  injury,  and  they 
force  him  to  assist  in  ruining  the  dealer  who  does  not  own  a  yard. 

There  is  such  an  element  of  coercion  and  intimidation  in  the 
by-law  under  consideration,  towards  the  wholesale  dealers,  manu- 
facturers, and  even  the  members  of  the  society,  and  such  provision 
made  for  penalties  and  forfeitures  against  them,  that  it  will  not  do 
to  say  it  was  optional  with  the  wholesale  dealer  whether  it  would 
pay  the  demand  or  not,  or  that  it  was  left  to  the  discretion  or  choice 
of  the  members  to  either  trade  with  the  wholesaler  or  abandon  the 
association.  A  conspiracy  formed  and  intended  directly  or  indi- 
rectly to  prevent  the  carrying  on  of  any  lawful  business,  or  to  injure  . 
the  business  of  any  one  by  wrongfully  preventing  those  who  would  |  YV-^ 
be  customers  from  buying  anything  from  the  representatives  of  such 
business,  by  threats  or  intimidation,  is  in  restraint  of  trade  and 
unlawful.- 

The  great  weight  of  authority  supports  the  doctrine  that  where 
the  policy  pursued  against  a  trade  or  business  is  of  a  ipenacing  char- 
acter calculated  to  destroy  or  injure  the  business  of  the  person  so 
engaged,  either  by  threats  or  intimidation,  it  becomes  unlawful,  and 
the  person  inflicting  the  wrong  is  amenable  to  the  injured  party  in 
a  civil  action  for  damages  therefor.  It  is  not  a  mere  passive,  let- 
alone  policy ;  a  withdrawal  of  all  business  relations,  intercourse,  and 
fellowship  that  creates  the  liability,  but  the  threats  and  intimidation 
shown  in  the  complaint. 

The  learned  counsel  for  the  appellees,  in  their  very  able  brief, 
contend  that  the  plaintiffs  were  only  incidentally  injured  by  the  acts 
of  the  defendants  in  enforcing  a  penalty  of  $ioo  against  the  West 
Michigan  Lumber  Company. 

It  will  be  observed  that  the  Retail  Lumber  Dealers'  Association 
invites  wholesalers  to  become  honorary  members,  and  that  said 
lumber  company  is  an  honorary  member.  But  the  rules  of  the  asso- 
ciation do  not  affect  alone  members,  active  and  honorary.  They 
extend  to  and  reach  any  wholesale  dealer  in  the  United  States  with 
whom  the  threat  to  withdraw  the  trade  of  150  retail  dealers  can  have 
weight. 

It  is  shown  in  the  finding  that  Michigan  is  the  source  from 
which  most  of  the  lumber  in  Northern  Indiana  is  procured,  and  that 


19 


1264  JACKSOX    %'.    STAXFIELD. 

the  rules  of  the  association  are  published  in  pamphlet  form  and  sent 
to  every  wholesale  dealer  in  the  United  States.  The  retail  dealers 
who  organized  the  association  in  question,  are  members  of  the  vari- 
ous cities  and  towns  where  they  are  located.  They  have  lumber 
yards  containing  stock  in  quantity  and  quality  suited  to  and  com- 
mensurate with  the  wants  of  the  consumers  in  their  several  locali- 
ties. These  gentlemen  are  prominent,  wealthy,  and  influential  citi- 
zens of  our  State,  whose  power,  from  the  elevated  stations  they 
occupy,  so  exercised,  enables  them  to  control  the  wholesale  dealers 
of  the  United  States  against  the  agents  and  brokers  within  their  own 
territory,  and  effectually  drive  them  out  of  business.  It  is  idle  to 
say  that  the  victim  of  such  a  combination  is  only  "incidentally" 
affected  thereby.  The  object  of  the  association,  and  the  result  at- 
tained, is  monopoly  of  the  trade  by  owners  of  yards,  and  the  broker 
is  simply  ignored  by  the  wholesale  dealers. 

It  is  not  in  point  to  cite  cases  where  men  voluntarily  agree  to 
observe  rules  adopted  by  themselves.  This  is  no  voluntary  aft'air 
of  the  wholesale  dealers.  It  is  not  even  a  combination  of  whole- 
salers. They  may,  and  do,  sometimes  become  honorary  members, 
so  as  to  keep  within  touch  of  the  retail  dealers  and  secure  trade.  It 
is,  as  stated,  an  association  of  retailers  to  restrict  the  liberty  of 
wholesalers  to  sell  to  customers  and  brokers,  and  the  wholesalers 
must  obey  or  lose  their  trade. 

It  is  found,  as  a  fact,  that  the  market  in  which  the  plaintiff's 
could  most  profitably  buy  was  in  Michigan.  Freight  and  railroad 
facilities  necessarily  limit  the  field. 

It  is  also  found  that  the  West  Michigan  Lumber  Company  is 
the  dealer  that  made  the  plaintiffs'  trade  most  profitable,  and  that, 
for  fear  of  the  penalties,  this  company  and  another  refused  to  deal 
with  them.  The  West  Michigan  Lumber  Company  was  willing  and 
anxious  to  sell  to  the  plaintiffs  until  fined  by  the  defendants  and 
mulcted  in  the  sum  of  one  hundred  dollars,  when  it  refused  to  make 
further  sales  for  the  reason  that  it  was  afraid  of  the  penalties.  Such 
rules  contravene  the  rights  of  non-members  to  earn  their  living  by 
fair  competition. 

The  case  of  Bohn  Mfg.  Co.  v.  Mollis,  54  Minn.  223,  is  cited  by 
appellees  as  sustaining  the  decision  of  the  lower  court.  The  opinion 
proceeds  upon  the  theory  that  there  was  no  element  of  coercion  or 
intimidation  in  the  acts  complained  of,  but  we  think  the  decision  in 
this  respect  is  in  conflict  with  approved  authority,  and  is  bad  as  a 
precedent. 

The  judgment  is  reversed,  with  instruction  to  restate  conclu- 
sions of  law,  and  render  judgment  upon  the  special  findings  in  favor 
of  the  appellants  for  five  hundred  and  eighty-three  dollars,  and  vvith 
the  further  instruction  to  render  a  judgment  perpetually  enjoining 
the  defendants  from  in  any  way,  other  than  by  fair,  open  compe- 
tition, interfering  with  the  plaintiffs  in  their  business,  and  from 
demanding  a  penalty  or  making  a  claim  against  any  one,  under  the 


Jl 


COTE    T'.    MURPIIV.  I265 

by-laws  of  said  association,  who  may  sell  to  the  plaintiffs,  or  through 
them  to  a  consumer.^ 


COTE  V.  MURPHY. 

Supreme  Court  of  Pennsylvania,  1894.     159  Pa.  St.  420. 

Mr.  Justice  Dean.  The  defendants  were  members  of  the  Planing  Mill 
Association  of  Allegheny  county,  and  Builders'  Exchange  of  Pittsburgh. 
The  different  partnerships  and  individuals  composing  these  associations  were 
in  the  business  of  contracting  and  building  and  furnishing  building  material 
of  all  kinds.  On  the  1st  of  May,  1891,  there  was  a  strike  of  the  carpenters, 
masons  and  bricklayers  in  the  building  trades,  bringing  about,  to  a  large 
extent,  a  stoppage  of  building. 

The  men  demanded  an  eight-hour  day,  with  no  reduction  in  wages 
theretofore  paid,  which  the  employers  refused  to  grant;  then  a  strike  by 
the  unions  of  the  different  trades  was  declared.  The  plaintiff,  at  the  time, 
was  doing  business  in  the  city  of  Pittsburgh  as  a  dealer  in  building  ma- 
terials. He  was  not  a  member  of  either  the  "Planing  Mill  Association,"  or 
of  the  "Builders'  Exchange;"'  there  were  also  contractors  and  builders,  who 
belonged  to  neither  of  these  organizations,  who  conceded  the  demands  of 
the  workmen;  they  sought  to  secure  building  material  from  dealers  wher- 

^  In  Doremus  v.  Hennessy,  176  111.  608  (1898),  accord,  semble,  the  language 
used  by  the  court  was  broader  than  was  required  for  the  decision  of  the 
case,  the  effect  of  the  defendant's  conduct  being  to  cause  persons  bound  to 
the  plaintiff  by  contracts  to  refuse  to  perform  them. 

Combinations  to  refuse  to  deal  with  or  to  prevent  or  induce  others 
to  deal  with  persons  not  members  thereof,  with  the  object  of  controlling 
the  price  of  the  commodity  dealt  in.  have  been  held  actionable  at  law  in 
IValsh  V.  Association  of  Master  Plumbers,  97  Mo.  App.  280  (1902),  and 
Erf  a  V.  Produce  Exchange,  82  Minn.  173  (1901),  under  statutes  making  con- 
tracts, etc.,  in  restraint  of  competition,  etc..  unlawful ;  and  in  Hazi'ardcn 
V.  Youghiogheny  &  Lehigh  Coal  Co.,  Ill  Wis.  545  (1901),  an  independent 
coal  dealer  recovered  damages  against  wholesale  dealers,  who,  having  a 
practical  monopoly  of  coal  at  Superior,  combined  with  retailers  to  main- 
tain a  fixed  retail  price  by  refusing  to  sell  to  retailers  who,  like  the  plaintiff, 
cut  the  price,  under  a  statute  making  persons  combining  to  injure  others 
liable  civilly  and  criminally;  see  State  v.  Huegin,  110  Wis.  189  (1901), 
holding  the  act  constitutional,  construing  it  to  include  combinations  to 
stifle  competition  and  holding  that  the  fact  that  the  object  was  to  advance 
the   interests   of   those   comliining   constituted   no   justification. 

In  Wycman  v.  Dcady,  79  Conn.  414  (1906),  it  was  held  that  an  action 
lay  by  a  non-union  workman  against  a  labor  union  and  its  walking  dele- 
gate, who  by  threat  of  strike  had  procured  his  discharge  because  he  was 
not  a  member  of  the  union,  under  a  statute  making  it  a  criminal  offense 
to  threaten  or  use  any  means  to  intimidate  any  person  to  compel  him  to  do 
or  abstain  from  doing  anything  which  such  person  has  the  right  to  do, 
which  had  been  construed  in  State  v.  Gliddcn.  55  Conn.  46  (1887),  to  make 
it  criminal  a  strike  to  procure  a  fellow  workman's  discharge. 

Contra:  Brewster  v.  Miller's  Sons  Co.,  101  Ky.  368  (1897),  holding 
that,  while  a  somewhat  similar  statute  made  such  a  contract  or  agreement 
unenforcible  and  subjected  the  parties  to  it  to  indictment,  it  gave  no 
private  right  of  action  at  law  or  equity  to  those  injured  thereby;  see  also, 
Dozvnes  v.  Bennett,  62>  Kans.  653  (1901).  \n  individual  aggrieved  by  a 
violation  of  the  "Sherman  Anti-Trust  Act"  can  not  sue  for  an  injunction, 
such  remedy  being  available  to  the  government  alone,  his  sole  remedy  is  the 
right  provided  therein  to  sue  for  threefold  damages,  National  Fire'proofing 
Co.  V.  Mason  Builders'  Assn.,  169  Fed.  259  (1909). 


1266  COTE   V.    MURPHY. 

ever  they  could,  and  thus  go  on  with  their  contracts;  if  they  succeeded  in 
purchasing  the  necessary  material,  the  result  would  be,  that  at  least  some  of 
the  striking  workmen  would  have  employment  at  a  higher  rate  of  wages 
than  the  two  associations  were  willing  to  pay;  the  tendency  of  this  was  to 
strengthen  the  cause  of  the  strikers,  for  those  employed  were  able  to  con- 
tribute to  the  support  of  their  fellow  workmen  who  were  idle.  The  two 
associations  already  named,  sought  to  enlist  all  concerned  as  contractors 
and  builders  or  as  dealers  in  supplies,  whether  members  of  the  associations 
or  not,  in  furtherance  of  the  one  object,  resistance  to  the  demands  of  the 
workmen.  The  plaintiff,  and  six  other  individuals  or  firms  engaged  in  the 
same  business,  refused  to  join  them,  and  undertook  to  continue  sales  of 
building  material  to  those  builders  who  had  conceded  the  eight-hour  day. 
The  Planing  Mill  Association  and  Builders'  Exchange  tried  to  limit  their 
ability  to  carry  on  work  at  the  advance,  by  inducing  lumber  dealers  and 
others  to  refrain  from  shipping,  or  selling  them  in  quantities,  the  lumber 
and  other  material  necessary  to  carry  on  the  retail  business;  in  several  in- 
stances, their  efforts  were  successful,  and  the  plaintiff  did  not  succeed  in 
purchasing  lumber  from  certain  of  the  wholesale  dealers  in  Cleveland  and 
Dubois,  where  he  wanted  to  buy.  The  defendants  were  active  members  of 
one  or  other  or  both  of  the  associations  engaged  in  the  contest  with  the 
striking  workmen.  The  strike  continued  about  two  months;  after  it  was  at 
an  end,  the  plaintiff  brought  suit  against  the  defendants,  averring  an  unlawful 
and  successful  conspiracy  to  injure  him  in  his  business,  and  to  interfere  with 
the  course  of  trade  generally,  to  the  injury  of  the  public;  that  the  con- 
spiracy was  carried  on  by  a  refusal  to  sell  to  him  building  materials  them- 
selves, and  by  threats  and  intimidation  preventing  other  dealers  from  doing 
so.  Under  the  instructions  of  the  court  upon  the  evidence,  there  was  a  ver- 
dict for  the  plaintiff  in  the  sum  of  $2,500,  damages,  which  the  court  reduced 
to  $1,500;  then  judgment,  and  from  that  defendants  take  this  appeal. 

The  plaintiff's  case  is  not  one  which  appeals  very  strongly  to  a  sense 
of  justice. 

"The  reason  of  the  law  is  the  life  of  the  law,"  and,  as  given  in  the 
cases  cited  by  appellee,  irresistibly  impels  to  the  conclusion  that  the  com- 
bination here  was  not  unlawful;^  a  conclusion  which   is  clearly  indicated 


^The  following  extracts  from  the  opinion  sufficiently  show  the  reasoning 
by  which  the  conclusion  was  reached : 

"The  mechanics  of  Pittsburgh,  engaged  in  the  different  building  trades, 
on  1st  of  May,  1891,  demanded  that  eight  hours  should  be  computed  as  a  day 
in  payment  of  their  wages.  Their  right  to  do  this  is  clear.  It  is  one  of  the 
indefeasible  rights  of  a  mechnic  or  laborer  in  this  commonwealth  to  fix  such 
value  on  his  services  as  he  sees  proper,  and,  under  the  constitution,  there  is 
no  power  lodged  anywhere  to  compel  him  to  work  for  less  than  he  chooses 
to  accept.  But  in  this  case  the  workmen  went  further;  they  agreed  that 
no  one  of  them  would  work  for  less  than  the  demand,  and  by  all  lawful 
means,  such  as  reasoning  and  persuasion,  they  would  prevent  other  workmen 
from  working  for  less.  Their  right  to  do  this  is  also  clear.  At  common  law, 
this  last  was  a  conspiracy  and  indictable,  but  under  the  acts  of  1869,  1872,  1876 
and  1891,  employees,  acting  together  by  agreement,  may,  with  a  few  excep- 
tions, lawfully  do  all  those  things  which  the  common  law  declared  a  con- 
spiracy. The  employers,  contractors  and  others,  engaged  in  building  and 
furnishing  supplies,  members  of  the  two  associations  already  mentioned,  to 
which  these  defendants  belonged,  refused  to  concede  the  demands  of  the 
workmen,   and  there  then  followed  a  prolonged  and  bitter   contest.     The 


COTE    V.    MURPHY,  126/ 

in  Com.  V.  Carlisle  (Brightly's  R.  39),  that  it  would  not  be  unlawful,  if 
there  was  first  recurrence  to  artificial  means  by  workmen  to  raise  the  market 
price.  Here,  the  step  provocative  of  a  combination  by  the  employers,  was 
an  attempt  by  lawful,  artificial  means  on  the  part  of  the  workmen  to  control 
the  supply  of  labor,  preparatory  to  a  demand  for  an  advance. 

Nor  does  the  fact  that  the  appellee  was  not  a  w^orkman  or  a  memoer 
of  any  of  the  unions  of  workmen,  put  him  in  any  better  attitude  than  if  he 
were.  He  undertook  for  his  own  profit  to  aid  the  cause  of  the  workmen; 
his  right  so  to  do  was  unquestionable.  But,  if  the  employers  by  a  lawful 
combination  could  limit  his  ability  so  to  do,  they  did  not  make  themselves 
answerable  in  damages  to  him  for  the  consequences  of  a  lawful  act. 

But  if  the  agreement  itself  were  not  unlawful,  were  the  methods  to 
carry  it  out  unlawful?     If  the  employers'  combination  here  had  used  illegal 


members  of  the  association  refused  to  furnish  supplies  to  those  engaged  in 
the  construction  of  any  building  where  the  contractor  had  conceded  the 
eight-hour  day.  This,  as  individual  dealers,  they  had  a  clear  right  to  do. 
They  could  sell  and  deliver  their  material  to  whom  they  pleased.  But  they 
also  went  further;  they  agreed  among  themselves  that  no  member  of  the 
association  would  furnish  supplies  to  those  who  were  in  favor  of  or  had 
conceded  the  eight-hour  day,  and  that  they  would  dissuade  other  dealers, 
not  members  of  the  associations,  from  furnishing  building  material  to  such 
contractors  or  retail  dealers;  to  the  extent  of  their  power,  this  agreement 
was  carried  out.  This  clearly  was  combination,  and  the  acts  of  assembly 
referred  to  do  not,  in  terms,  embrace  employers;  they  only  include  within 
their  express  terms  workmen;  hence,  it  is  argued  by  counsel  for  appellee, 
these  defendants  are  subject  to  all  the  common-law  liability  of  conspirators 
in  their  attempts  to  resist  the  demand  for  increased  wages ;  that  is,  there  can 
be  a  combination  among  workmen  to  advance  wages,  but  there  can 
be  no  such  combination  of  employers  to  resist  the  advance;  that  which  by 
statute  is  permitted  to  the  one  side,  the  common  law  still  denies  to  the  other. 
Before  any  legislation  on  the  question,  it  was  held  that  a  combination  of 
workmen  to  raise  the  price  of  labor,  or  of  employers  to  depress  it,  was  un- 
lawful, because  such  combination  interfered  with  the  price  which  would 
otherwise  be  regulated  by  supply  and  demand;  this  interference  was  in 
restraint  of  trade  or  business,  and  prejudicial  to  the  public  at  large.  Such 
combination  made  an  artificial  price;  workmen,  by  reason  of  the  combination, 
were  not  willing  to  work  for  what  otherwise  they  would  accept;  employers 
would  not  pay  what  otherwise  they  would  consider  fair  wages.  Supply 
and  demand  consist  in  the  amount  of  labor  for  sale  and  the  needs  of  the 
employer  who  buys.  H  more  men  ofTer  to  sell  labor  than  are  needed,  the 
price  goes  down  and  the  employer  buys  cheap;  if  fewer  than  required  offer, 
the  price  goes  up  and  he  buys  dear ;  as  every  seller  and  buyer  is  free  to  bar- 
gain for  himself,  the  price  is  regulated  solely  by  supply  and  demand.  On 
this  reasoning  was  founded  common-law  conspiracy  in  this  class  of  cases. 
But,  in  this  case,  the  workmen,  without  regard  to  the  supply  of  labor  or 
the  demand  for  it,  agree  upon  what  in  their  judgment  is  a  fair  price,  and 
then  combine  in  a  demand  for  payment  of  that  price;  when  refused,  in 
pursuance  of  the  combination,  they  quit  work,  and  agree  not  to  work  until 
the  demand  is  conceded;  further,  they  agree  by  lawful  means  to  prevent 
all  others,  not  members  of  the  combination,  from  going  to  work  until  em- 
ployers agree  to  pay  the  price  fixed  by  the  combination.  And  this,  as  long 
as  no  force  was  used  or  menaces  to  person  or  property,  they  had  a  lawful 
right  to  do.  And  so  far  as  is  known  to  us,  the  price  demanded  by  them 
may  have  been  a  fair  one.  But  it  is  nonsense  to  say  that  this  was  a  price 
fixed  by  supply  and  demand;  it  was  fixed  by  a  combination  of  workmen 
on  their  combined  judgment  as  to  its  fairness;  and,  that  the  supply  might 
not  lessen  it,  they  combined  to  prevent  all  other  workmen  in  the  market 
from   accepting   less.      Then    followed    the    combination    of    employers,    not 


1268  COTE    Z'.    MUKPHY. 

methods  or  means  to  prevent  other  dealers  from  selling  supplies  to  plaintiff, 
the  conspiracy  might  still  have  been  found  to  exist.  The  threats  referred 
to,  although  what  are  usually  termed  threats,  were  not  so  in  a  legal  sense. 
To  have  said  they  would  inflict  bodily  harm  on  other  dealers,  or  vilify 
them  in  newspapers,  or  bring  on  them  social  ostracism,  or  similar  declara- 
tions, these  the  law  would  have  deemed  threats,  for  they  may  deter  a  man 
,  of  ordinary  courage  from  the  prosecution  of  his  business  in  a  way  which 
accords  with  his  own  notions ;  but  to  say,  and  even  that  is  inferential  from 
the  correspondence,  that  if  they  continued  to  sell  to  plaintiff  the  members 
of  the  association  would  not  buy  from  them,  is  not  a  threat.  It  does  not 
interfere  with  the  dealer's  free  choice;  it  may  have  prompted  him  to  a 
somewhat  sordid  calculation ;  he  may  have  considered  which  custom  was 
most  profitable,  and  have  acted  accordingly ;  but  this  was  not  such  coercion 
and  threats  as  constituted  the  acts  of  the  combination  unlawful :  Rodgers  v. 
Duif,  13  Moore,  P.  C.  209;  Bowen  v.  Matheson,  14  Allen,  499;  Bohn  Manu- 
facturing Co.  V.  HoUis,  et  al.,  54  Minn.  223. 


to  lower  the  wages  theretofore  paid,  but  to  resist  the  demand  of  a  com- 
bination for  an  advance ;  not  to  resist  an  advance  which  would  naturally 
follow  a  limited  supply  in  the  market,  for  the  supply,  so  far  as  the  work- 
men belonging  to  the  combination  were  concerned,  was  bj^  combination 
wholly  withdraw,  and  as  to  workmen  other  than  members,  to  the  extent 
of  their  power,  they  kept  them  out  of  the  market;  by  artificial  means,  the 
market  supply  was  almost  wholly  cut  off.  The  combination  of  the  employers, 
then,  was  not  to  interfere  with  the  price  of  labor  as  determined  by  the 
common-law  theory,  but  to  defend  themselves  against  a  demand  made  alto- 
gether regardless  of  the  price,  as  regulated  by  the  supply.  The  element 
of  an  unlawful  combination  to  restrain  trade  because  of  greed  of  profit 
to  themselves,  or  of  malice  towards  plaintiff  or  others  is  lacking,  and  this 
is  the  essential  element  on  which  are  founded  all  decisions  as  to  common- 
law  conspiracy  in  this  class  of  cases.  And  however  unchanged  may  be  the 
law  as  to  combinations  of  employers  to  interfere  with  wages,  where  such 
combinations  take  the  initiative,  they  certainly  do  not  depress  a  market 
price  when  they  combine  to  resist  a  combination  to  artificially  advance  price." 

It  was  also  held  that  the  element  of  "real  damage"  to  the  plaintiff  was 
absent,  the  court  saying:  "by  far  the  larger  number  of  dealers  in  the  city 
and  county  were  members  of  the  combination  which  refused  to  sell ;  only 
the  plaintiff  and  six  others  refused  to  enter  the  combination;  the  result  was 
that  these  seven  had  almost  a  monopoly  of  furnishing  supplies  to  all  builders 
who  conceded  the  advance.  Plaintiff  admits  in  hrs  own  testimony  that 
thereby  his  business  and  profits  largely  increased;  in  a  few  instances  he 
paid  more  to  wholesale  dealers  and  put  in  more  time  buying  than  he  would 
have  done  if  the  associations  had  not  interfered  with  those  who  sold  him ; 
but  it  is  not  denied  that,  as  a  result  of  the  combination,  he  was  individually 
a  large  gainer.  True,  he  avers  that,  if  defendants  had  gone  no  further 
than  to  refuse  to  sell  themselves,  he  would  have  made  a  great  deal  more 
money;  that  is,  he  did  not  make  as  large  a  sum  as  he  would  have  made 
if  thej^  had  not  dissuaded  others,  not  members  of  the  association,  from 
selling  to  him;  but  that,  by  the  fact  of  the  combinations  and  strike,  he  was 
richer  at  the  end  than  when  they  commenced,  is  not  questioned." 

"We  then  have  these  facts,  somewhat  peculiar  in  the  administration  of 
justice:  A  plaintiff  suing  and  recovering  damages  for  an  alleged  unlawful 
act,  of  which  he  himself,  in  so  far  as  he  aided  the  workmen's  combination, 
is  also  guilty,  and  both  acts  springing  from  the  same  source,  a  contest  be- 
tween employers  and  employed  as  to  the  price  of  daily  wages;  and  then 
the  further  fact,  that  this  contest,  instead  of  damaging  him,  resulted  largely 
to  his  profit." 


BROWX    t'.    JACOr.s'    PHARMACY    CO.  '  I269 

BROWN  &  ALLEN  v.  JACOBS'  PHARMACY  CO. 

Supreme  Court  of  Georgia,  1902.     115  Ga.  429. 

Appeal  from  an  injunction  granted  by  Lumpkin,  J.,  Fulton, 
Superior  Court. 

Fish,  J.  The  record  in  this  case  discloses  that,  prior  to  the 
institution  of  the  present  action  and  since  then  there  existed  in  the 
L'nited  States  three  organizations,  known  respectively  as  the  Pro- 
prietary -Association  of  America,  the  National  Wholesale  Druggists 
Association,  and  the  National  Association  of  Retail  Druggists. 
These  associations,  occupying  each  toward  the  others  close  and  in- 
timate relations,  had,  among  other  things,  the  purpose  of  keeping 
up  the  prices  of  proprietary  medicines,  drugs,  and  other  articles 
usually  dealt  in  by  those  engaged  in  the  drug  trade.  A  local  asso- 
ciation was  formed  in  Atlanta,  known  as  the  Atlanta  Retail  Drug- 
gists Association.  When  it  was  first  organized,  Joseph  Jacobs,  sec- 
retary and  treasurer  of  the  Jacobs'  Pharmacy  Co.,  the  plaintiff  in  the 
present  case,  was  a  member  of  it,  but  at  that  time  it  was  distinctly 
understood  and  agreed  among  its  memibers  that  it  was  to  undertake 
no  action  with  reference  to  the  cutting  of  prices  by  dealers  in  drugs, 
or  to  control  prices  of  the  same.  In  consequence  of  charges  brought 
against  him  as  to  his  advertising  methods,  etc.,  the  complainant  with- 
drew from  the  association.  Some  of  the  members  of  the  associa- 
tion were  niembers  of  one  or  more  of  the  large  associations  above 
referred  to.  After  the  retirement  of  Jacobs,  the  local  concern  put 
in  operation  a  scheme  to  prevent  the  Pharmacy  Co.  from  being  able 
to  buy  goods  with  which  to  conduct  its  business.  The  main  features 
of  the  scheme  were,  that  the  local  concern,  by  circulars,  letters,  or 
otherwise,  undertook  to  notify  wholesalers  and  manufacturers 
throughout  the  country  that  the  Pharmacy  Co.  was  an  aggressive 
cutter,  and  to  request  the  persons  or  concerns  addressed  not  to  sell 
it  any  more  goods ;  further,  to  require  all  salesmen  representing  the 
manufacturers  or  wholesale  houses  to  procure  from  the  local  asso- 
ciation a  card,  in  order  to  procure  which  such  salesmen  had  to  sign 
an  agreement  not  to  sell  the  Pharmacy  Co.  any  goods ;  and  another 
part  of  the  scheme  was  to  give  the  manufacturers  and  wholesalers 
to  understand  that,  unless  they  refused  to  sell  the  plaintiff  any  goods, 
the  members  of  the  local  association  would  not  buy  any  more  goods 
from  them.  In  this  condition  of  affairs  the  plaintiff  brought  its 
equitable  petition  against  the  defendants,  alleging,  in  substance, 
the  facts  set  forth  above,  and  praying  for  damages  for  alleged  in- 
juries to  its  business  already  done,  and  for  an  injunction  to  prevent 
the  defendants  from  carrying  into  effect  the  scheme  above  outlined. 
The  petition  charged  that  the  scheme  was  an  unlawful  conspiracy 
to  destroy  the  plaintiff's  business ;  and  it  more  fully  set  out  the  man- 
ner in  which  this  scheme  was  to  be  eff'ectuated,  by  setting  forth,  as 
exhibits  marked.  A,  B,  and  C,  certain  letters,  etc.,  by  means  of 
which  the  defendants  were  seeking  to  accomplish  the  alleged  unlaw- 
ful purpose  which  the  plaintiff  was  seeking  to  restrain.     These  ex- 


1270  BROWX    Z'.    JACOBS     PHARMACY    CO. 

hibits  were  in  substance  as  follows :  A  circular  letter  written  by 
the  defendants'  association  to  wholesalers,  after  stating  that  there 
were  fifty-eight  retailers  in  the  association  and  only  one  price  "cut- 
ter" and  expressing  its  belief  that  they  would  prefer  the  support  of 
the  former  to  that  of  the  "cutter,"  called  attention  to  an  enclosed 
resolution  of  the  association  requiring  that  salesmen  with  whom  the 
association  shall  make  purchases  shall  have  cards  which  were  issued 
only  by  them,  or  the  wholesalers  or  manufacturers  whom  they  rep- 
resent sign  an  agreement,  enclosed  in  the  letter,  binding  them  to 
sell  only  to  members  of  the  defendants'  association  and  others  who 
have  not  been  designated  as  aggressive  price  cutters. 

A  conspiracy  has  been  defined  as  a  combination  either  to  ac- 
complish an  unlawful  end,  or  to  accomplish  a  lawful  end  by  un- 
lawful means.  The  terms  "criminal''  and  "civil"  are  used  respec- 
tively to  designate  a  conspiracy  which  is  indictable  or  a  conspiracy 
which  will  furnish  ground  for  a  civil  action.  To  render  a  conspiracy 
indictable  at  common  law,  no  overt  acts  in  carrying  out  the  design 
of  the  conspirators  was  necessary.  The  conspiring  was  sufficient  to 
authorize  an  indictment.  Yet  it  will  be  readily  perceived  that,  if 
the  conspirators  stopped  with  conspiring,  and  did  nothing  further 
in  execution  of  the  design,  no  injury  would  have  been  done  which 
would  furnish  a  basis  for  a  civil  action.  But  if,  in  carrying  out  the 
design  of  the  conspirators,  overt  acts  were  done,  causing  legal  dam- 
age, the  person  damaged  had  a  right  of  action.  Saz'ille  v.  Roberts, 
I  Ld.  Raym.  378.  Hence  arose  the  dictum  that  the  gist  of  criminal 
conspiracy  is  the  combination,  and  the  gist  of  civil  conspiracy  is  the 
injury  or  damage. 

It  is  suggested,  inasmuch  as  the  evidence  shows  that  not  all  of 
the  druggists  of  Atlanta  are  members  of  the  local  association,  but 
only  about  three-fourths  of  them,  that  the  combination  or  agreement 
was  not  obnoxious  to  this  rule,  or  the  rule  declaring  agreements  or 
contracts  tending  to  monopoly,  against  public  policy,  even  if  it  would 
have  been  so  were  all  members.  We  do  not  think  this  distinction 
sound.  Nothing  is  more  common  than  for  the  courts  to  declare  con- 
tracts between  only  two  persons,  who  by  no  means  control  a  par- 
ticular kind  of  business,  void  as  contrary  to  public  policy.^^  It  is 
the  nature  or  character  and  tendency  of  the  agreement  which  ren- 
ders it  objectionable,  whether  in  fact  the  parties  to  it  succeed  in 
restraining  trade  generally,  or  stifling  competition,  or  not.  As  to 
the  matter  of  monopoly,  it  may  also  be  said  that  if  parties  make 
contracts  or  agreements  seeking  to  establish  a  monopoly,  and  do 
establish  it  as  far  as  they  can,  surely  they  cannot  say  that  the  effort 
is  legal  if  not  completely  successful. 

^Citing  Bailey  v.  Master  Plumbers'  Assn.,  103  Tenn.  99  (1899),  a  com- 
bination of  master  plumbers  similar  to  that  in  Macaulcy  v.  Tierney.  was  held 
so  far  illegal  that  no  action  lav  to  recover  penalties  for  violation  of  its 
by-laws.  "The  individual  right  is  radically  different  from  the  combined 
action.  The  combination  has  hurtful  powers  and  influences  not  possessed 
by  the  individual.  It  threatens  and  impairs  rivalry  in  trade,  covets  control 
in  prices,  seeks  and  obtains  its  own  advancement  at  the  expense  and  in  the 
oppression  of   the  public.     The   difference   in  legal  contemplation   between 


BROWN    V.    JACOBS     PHARMACY    CO.  12/1 

In  Moore  v.  Bennett  (111.  1892),  15  L.  R.  A.  361,  it  was  held 
that  an  association  of  stenographers  of  which  one  object  was  to 
control  the  prices  to  be  charged  for  stenographic  work  by  its  mem- 
bers, by  restraining  all  competition  between  them,  was  an  illegal 
combination,  although  only  a  small  portion  of  the  stenographers  of 
the  city  belonged  to  it.  In  the  opinion  Bailey,  J.,  says  (p.  364)  : 
"Contracts  in  partial  restraint  of  trade  which  the  law  sustains  are 
those  which  are  entered  into  by  a  vendor  of  a  business  and  its  good 
will  with  his  vendee,  by  which  the  vendor  agrees  not  to  engage  in 
the  same  business  within  a  limited  territory,, and  the  restraint,  to 
be  valid,  must  be  no  more  than  is  reasonably  necessary  for  the  pro- 
tection of  the  vendee  in  the  enjoyment  of  the  business  purchased." 

The  next  position  of  the  defendants,  and  one  which,  on  first 
presentation,  seems  to  be  their  strongest  defense  on  this  part  of  the 
case,  is  that,  at  common  law,  contracts  or  agreements  in  general  or 
unreasonable  restraint  of  trade  were  merely  void  and  unenforceable ; 
that  either  party  could  defend  against  an  action  based  on  them ;  but 
that  they  were  not  illegal  in  such  sense  as  to  give  a  right  of  action 
to  third  parties.  While  there  may  be  conflict  among  the  authorities, 
it  seems  to  us  that  some  confusion  might  have  been  avoided  by  bear- 
ing in  mind  the  distinction  between  a  contract  or  agreement  merely 
in  restraint  of  trade  as  between  the  parties,  and  a  combination  or 
contract  to  stifle  competition,  or  a  conspiracy  to  ruin  a  competitor. 
Thus  if  one  of  two  rival  merchants,  not  purchasing  the  business  of 
the  other,  contracted  with  him  that  the  latter  should  cease  business 
and  never  enter  mercantile  pursuits  at  any  time  or  place,  the  con- 
tract would  be  in  general  restraint  of  trade,  and  void,  and  could  not 
be  enforced.  But  it  alone  would  not  give  a  right  of  action  to  third 
parties ;  and  although  the  retiring  from  business  of  one  of  the  mer- 
chants might  lessen  facilities  for  trading,  and  incidentally  cause  in- 
convenience, or  even  put  it  in  the  power  of  the  other  to  raise  his 
prices,  the  contract  as  such  would  be  merely  void.  But,  on  the  other 
hand,  suppose  that  two  merchants  should  agree  that  one  should 
retire  from  business  and  that  no  other  person  should  open  a  similar 
business,  and  if  he  did  so,  that  the  two  would  drive  away  his  cus- 
tomers or  break  up  his  business  by  violence,  threats,  or  like  means, 
it  would  get  beyond  the  domain  of  a  mere  non-enforceable  contract 
into  the  domain  of  conspiracy.  Or  suppose  that  a  number  of  mer- 
chants should  agree  to  fix  the  price  of  certain  goods  and  not  to  sell 
below  that  price,  if  there  were  no  statute  on  the  subject,  and  the 
case  rested  on  the  common  law,  the  agreement  would  simply  be  non- 
enforceable  ;  but  if  they  went  further  and  agreed  that,  if  any  other 
merchant  sold  at  a  less  price,  they  would  force  him  to  their  terms 

individual  rights  and  combined  action  in  trade  is  seen  in  numerous  cases. 
India  Bagging  Association  v.  Kock,  14  La.  Ann.  168;  Arnot  v.  Pittston  & 
E.  Coal  Co.,  68  N.  Y.  558;  Morris  Run  Coal  Co.  v.  Barclav  Coal  Co..  68  Pa. 
St.  173;  The  Sugar  Trust  Case,  3  N.  Y.  S.  401,  7  N.  Y.  S.  406;  United  States 
V.  Trans-Missouri  Freight  Assn.,  166  U.  S.  290;  United  States  v.  Joint 
Traffic  Assn.,  171  U.  S.  505;  Hooker  v.  J'andezvater,  4  Denio  (N.  Y.)  349; 
Stanton  V.  Allen,  5  Denio  (N.  Y.)  434;  Craft  v.  McConoiighy,  79  111.  346; 
Nester  v.  Continental  Brewing  Co.,  161  Pa.  St.  473." 


1272  BROWX    T'.    jAfOliS      1'1]AKMACV    CO. 

or  drive  away  those  dealing  with  him,  by  violence,  threats,  or  boy- 
cotting, it  would  cease  to  be  a  mere  non-enforceable  contract ;  and 
if  in  its  execution  damages  proximately  resulted  to  such  other  mer- 
chant, he  would  have  a  right  of  action.  For  two  or  more  people 
to  make  an  agreement  which  neither  can  enforce  at  law  against  the 
other  is  one  thing;  but  to  further  agree,  and  under  that  agreement 
proceed  to  force  another  who  is  no  party  to  it,  against  his  will,  to 
'be  governed  by  it,  under  penalty  of  financial  ruin  by  driving  off  his 
customers,  or  the  like,  is,  to  use  a  favorite  expression  of  former 
Chief  Justice  Warner,  "another  and  quite  a  different  thing." 

Courts  and  text-writers  have  not  infrequently  asserted  that,  as 
a  general  rule,  a  conspiracy  can  not  be  made  the  subject  of  a  civil 
action  unless  something  is  done,  which,  without  the  conspiracy 
would  give  a  right  of  action. 

Unquestionably  any  person  who  does  not  occupy  a  public  or 
quasi-public  position  (like  public  officials,  railroad  companies,  etc.), 
or  whose  property  has  not  become  impressed  with  any  public  or 
quasi  public  use  {Miinii  v.  Illinois  (1876),  94  U.  S.  113),  may  or- 
dinarily deal  with  any  other  person  at  his  option.  It  may  also  be 
conceded,  at  least  for  the  sake  of  the  argument,  that  ordinarily  a 
number  of  persons  may  in  concert  decline  to  sell  to  or  buy  from  an- 
other. Yet  the  facts  of  the  present  case  go  much  further  than  that. 
Here  there  was  a  combination,  not  merely  agreeing  not  to  deal  with 
the  plaintiff,  but  undertaking  also  to  drive  oft'  and  prevent  others 
from  dealing  with  it,  and  seeking  to  ruin  its  business  by  destroying 
its  power  to  purchase  goods,  unless  it  should  submit  to  regulate  its 
business  or  fix  its  prices  as  they  desired.  If  the  defendants,  as  in- 
dividuals, or  in  any  way,  claim  to  have  the  right  to  fix  the  prices  at 
which  they  will  sell,  how  can  they  claim  the  plaintiff  has  no  such 
right  as  to  its  own  business?  To  protect  the  individual  against 
encroachments  upon  his  rights  by  greater  power  is  one  of  the  most 
sacred  duties  of  courts.  If  there  is  any  analog}'  between  a  combina- 
tion of  druggists  to  raise  and  maintain  prices,  and  a  biological 
species,  the  Darwinian  theory  is  hardly  a  rule  for  a  court  in  ad- 
ministering equity. 

We  will  now  refer  to  some  authorities  cited  by  defendants.  A 
leading  case,  in  modern  times,  is  the  English  case  of  Mogul  Steam- 
ship Co.  V.  McGregor,  23  O.  B.  Div.  608,  The  majority  of  the  court 
of  appeal  found,  as  matter  of  fact,  that  the  defendants  were  not  en- 
gaged in  a  conspiracy  or  unlawful  combination,  and  were  not  ac- 
tuated by  malice  or  ill-will  toward  plaintift',  and  did  not  aim  at  any 
general  injury  to  plaintift''s  trade,  the  object  being  simply  to  divert 
the  trade  from  plaintiff  to  defendants,  and  that  the  damage  to  be  in- 
flicted was  to  be  strictly  limited  by  the  gain  which  defendants 
desired  to  win  for  themselves ;  in  other  words,  that  it  was  a  case  of 
competition  only.  Of  course,  the  loss  which  a  rival  may  suffer  from 
legitimate  competition  does  not  give  a  right  of  action.  A  careful 
consideration  of  the  various  decisions  in  this  case  will  show  that,  in 
substance,  it  only  held  that  where  competition  was  lawful,  even  if 
sharp,  and  the  acts  complained  of  were  adopted  for  the  advancement 


BROWN    v.    JACOBS     PHARMACY    CO.  I273 

of  the  defendants'  own  trade,  there  was  no  actionable  conspiracy, 
although  plaintiff  may  have  sustained  loss  thereby.  If  this  decision 
should  be  deemed  adverse  to  the  views  here  presented,  it  may  be 
well  to  contrast  the  public  policy  of  this  state  with  that  mentioned 
by  Fry,  L.  J.-  Bowcn  v,  Matheson,  14  Allen,  499,  will  be  found  to 
have  been  decided  on  the  idea  of  competition,  but  it  is  not  a  well- 
considered  case,  reviews  none  of  the  authorities  (but  one  being 
cited),  and  decides  only  as  to  certain  allegations  on  demurrer.  It 
has  been  criticised  by  Mr.  Eddy,  whose  book  shows  that  he  ap- 
proached the  subject  without  any  prejudice  against  combinations. 
I  Eddy,  Comb.  §.571.  Air.  Freeman  in  his  note  to  Hardin  v.  Ameri- 
can Glucose  Co.,  74  Am.  St.  R.  244,  says :  "Massachusetts  seems  also 
to  have  gone  astray  on  the  question  of  illegal  combinations,  .  .  . 
having  confused  the  doctrine  relating  to  contracts  in  restraint  of 
trade  and  the  doctrine  against  restrictions  upon  competition."  AIc- 
Caulcy  V.  Tierncy  (R.  I.  1895)  33  L.  R.  A.  I,  is  another  case 
relied  on  by  defendants.  If  this  decision  is  sound,  it  can  only  be  on 
the  idea  that  the  defendants  were  seeking  to  obtain  trade  for  them- 
selves by  saying,  in  effect :  "If  you  deal  with  us,  we  will  deal  with 
you ;  if  you  deal  with  others,  we  will  withdraw  our  patronage." 
Whether  such  an  agreement  was  legally  enforceable  need  not  be  dis- 
cussed. There  was  no  effort  to  compel  or  coerce  others  not  mem- 
bers to  be  bound  by  their  prices  or  views.  If  the  decision  in  Bohn 
Mfg.  Co.  V.  Mollis,  54  Alinn.  223,  55  N.  W.  1119,  40  Am.  St.  R.  319, 
can  be  sustained,  it  must  be  on  the  same  idea.  No  compulsory  meas- 
ures seem  to  have  been  used  to  enforce  obedience  on  members ;  nor 
does  there  appear  to  have  been  any  effort  to  drive  away  from  plain- 
tiff others  than  those  voluntarily  acting  together  in  concert,  and  no 
pressure  on  outsiders  to  maintain  prices  or  incur  ruin.  In  truth, 
however,  some  of  what  was  said  in  that  decision  is  unsound,  and  not 
in  accord  with  cases  already  cited.  It  has  been  considerably  criti- 
cised. It  seems,  too,  that  in  some  cases  in  New  York  and  elsewhere 
an  idea  has  arisen  of  determining  how  much  competition  is  desirable, 
and  apparently  of  holding  that  extreme  competition  is  undesirable, 
and  a  combination  to  meet  it  is  not  unlawful. 

Judgment  affirmed." 

"  "Engrossing,  forestalling,  and  rcgrating  still  stand  in  our  code  as  crim- 
inal offenses,  and  the  presiding  judge  is  required  to  give  the  law  in  reference 
to  these  offenses  specially  in  charge  to  the  grand  jury  at  each  term  of  court. 
See  Penal  Code,  §§  662.  846.  Our  State  constitution  declares  that  the  legis- 
lature "shall  have  no  power  to  authorize  any  corporation  .  ^  .  to  make 
any  contract,  or  agreement  whatever,  with  any  such  corporation  (i.  e.,  other 
corporations),  which  may  have  the  effect,  to  defeat  or  lessen  competition 
in  their  respective  businesses,  or  to  encourage  monopoly;  and  all  such  con- 
tracts and  agreements  shall  be  illegal  and  void." 

^  See  accord:  Gat::oiv  v.  Btieiiiiig,  106  Wis.  1  (1900),  of  the  defendants, 
one  was  a  member  of  the  Liverymen's  Association  of  Milwaukee,  the  other 
the  secretary  of  tlie  association.  The  former  had  contracted  with  an  under- 
taker who  was  in  charge  of  the  burial  of  the  plaintiff's  child,  to  supply  a 
hearse  and  carriage.  By  the  rules  of  the  association  the  members  might  not 
supply  vehicles  to  persons  who  did  not  deal  exclusively  with  its  members. 
The  secretary,  believing  that  the  undertaker  in  question  dealt  with  persons 


12/4  BOUTWELL    Z>.    MARP. 


4.    For  the  use  of  agreements  surrendering  the  freedom  of  the        1 
individual  to  the  will  of  the  majority. 


BOUTWELL  V.  MARR. 

'^  Supreme  Court  of  Vermont,  1899.    71  Vermont,  1. 

MuNSON,  J.  It  is  clear  that  every  one  has  a  right  to  withdraw 
his  own  patronage  when  he  pleases,  but  it  is  equally  clear  that  he 
has  no  right  to  employ  threats  or  intimidation  to  divert  the  patron- 
age of  another.  If  it  be  true  as  a  general  proposition  that  several 
may  lawfully  unite  in  doing  to  another's  injury,  even  for  the  accom- 
plishment of  an  unlawful  purpose,  whatever  each  has  a  right  to  do 
individually,  it  by  no  means  follows  that  the  combination  may  not 
be  so  brought  about  as  to  make  its  united  action  an  unlawful  means. 
The  defendants  insist  that  as  members  of  the  association  they  had 
a  right  to  resolve  to  keep  their  work  among  themselves,  and  that  in 
the  absence  of  anything  tending  to  show  an  attempt  on  their  part  to 
influence  the  action  of  others,  they  cannot  be  held  liable.  It. may  be 
true  that  if  the  defendants,  acting  independently  of  any  organiza- 
tion and  moved  solely  by  similarity  of  interest  and  views,  had  united 
in  withdrawing  their  patronage,  the  effect  upon  the  plaintiff's  busi- 
ness would  have  been  the  same,  and  yet  the  defendants  have  incurred 
no  liability.  But  in  the  case  supposed  the  united  action  would  result 
from  the  free  exercise  of  individual  choice.  It  will  be  seen  upon  fur- 
ther inquiry  that  this  cannot  be  said  of  the  action  of  an  organization 
like  that  operated  by  the  defendants. 

It  is  true,  as  suggested  in  argument,  that  every  one  engaged  in 
business  is  liable  to  have  it  injured  or  destroyed  by  the  action  of 
those  upon  whom  he  depends  for  patronage.  But  when  those  upon 
whom  he  depends  for  patronage  are  acting  as  individuals,  he  has  a 
measure  of  security  in  the  probability  that  different  preferences  will 
be  shown  by  persons  left  to  their  own  choice ;  and  if  some  who  desire 
to  injure  his  business  secure  the  cooperation  of  others  by  unlawful 
means,  the  law  gives  him  a  remedy.  If  the  defendants  are  right,  he 
can  be  deprived  of  this  security  and  this  remedy  by  converting 
those  who  desire  his  injury  into  the  majority  of  an  association,  and 
those  who  do  not  into  a  suppressed  minority,  held  to  the  designated 
course  by  the  pressure  of  a  system  of  fines  and  penalties.  But  giv- 
ing a  new  face  to  an  old  wrong  can  never  defeat  the  remedy,  for  the 
law  will  require  as  to  the  substance  of  the  thing  complained  of.    If 

not  members,  notified  the  other  defendant  of  the  fact  and  called  on  him  to 
obey  the  rules.  He  thereupon  drove  off  leaving  the  plaintiff  without  the 
conveyances  necessary  for  the  proper  burial  of  his  child.  The  association 
was  held  an  unlawful  combination  to  monopolize  a  business  essential  to  civ- 
ilized life  and  "to  strike  down  competition  and  to  hamper  individual  industry, 
so  as  to  compel  every  person,  in  order  to  obtain  proper  facilities  for  a 
funeral,  to  submit  to  the  dictates  of  a  combine,"  and  the  defendants  were 
liable  for  damages  caused  by  their  acts  done  in  pursuance  of  its  provisions. 


BOUTWELL    f.    MARK.  «  12 


/3 


the  plaintiffs  were  in  fact  injured  by  a  forced  withdrawal  of  patron- 
age secured  through  the  action  of  defendants'  organization,  they  are 
entitled  to  redress.  Without  undertaking  to  designate  with  precision 
the  lawful  limit  of  organized  effort,  it  may  safely  be  affirmed  that 
when  the  will  of  the  majority  of  an  organized  body,  in  matters  in- 
volving the  rights  of  outside  parties,  is  enforced  upon  its  members 
by  means  of  fines  and  penalties,  the  situation  is  essentially  the  same 
as  when  unity  of  action  is  secured  among  unorganized  individuals 
by  threats  or  intimidation.  The  withdrawal  of  patronage  by  con- 
certed action,  if  legal  in  itself,  becomes  illegal  when  the  concert 
of  action  is  procured  by  coercion.  In  this  case,  it  could  easily  be 
found  that  a  fine  of  fifty  dollars  for  a  violation  of  the  rules  was  not 
intended  to  be  applied  to  rules  adopted  to  secure  a  performance  of 
the  ordinary  duties  of  membership.  If  in  fact  designed  to  hold  un- 
willing members  to  unity  of  action  in  aggressive  movement  of  un- 
lawful character,  the  defendants  cannot  complain  if  the  law  so 
treats  it.\  The  jury  could  probably  infer  from  the  nature  and  man- 
agement of  the  defendants'  organization  that  their  united  action 
was  due  in  part  to  the  means  adopted  to  secure  it.  The  force  of  the 
measure  resolved  upon  lay  partly  in  the  fact  that  the  by-laws  threat- 
ened penalties  against  any  one  who  should  fail  in  carrying  it  into 
effect. 

The  fact  that  the  members  of  the  association  voluntarily  assumed 
its  obligations  in  the  first  instance,  so  far  as  it  be  a  fact,  is  not  con- 
trolling. The  law  cannot  be  compelled  by  any  initial  agreement  of 
an  associate  member  to  treat  him  as  one  having  no  choice  but  that 
of  the  majority,  nor  as  a  willing  participant  in  whatever  action  may 
be  taken.  The  law  sees  in  the  membership  of  an  association  of  this 
character  both  the  authors  of  its  coercive  system  and  the  victims  of 
its  unlawful  pressure.  If  this  were  not  so,  men  could  deprive  their 
fellows  of  established  rights,  and  evade  the  duty  of  compensation, 
simply  by  working  through  an  association.  But  it  can  hardly  be  sup- 
posed that  the  defendants'  organization  reached  its  present  propor- 
tions without  some  previous  use  of  the  methods  disclosed  by  the 
evidence  above  recited ;  and  as  far  as  its  membership  was  due  to 
coercion,  there  was  a  further  element  of  unlawful  pressure  in  the 
enforcement  of  united  action  against  the  plaintiffs.  It  would  be 
strange  indeed  if  the  members  of  an  association,  organized  upon 
such  a  basis  and  advanced  by  such  means,  could  meet  a  claim  of  this 
nature  by  saying  that  they  had  made  no  attempt  to  secure  the  coop- 
eration of  outside  parties.  It  is  clear  that  if  the  association  had 
comprised  but  a  small  portion  of  the  manufacturers,  and  had 
destroyed  the  plaintiff's  business  by  compelling  other  manufacturers 
to  join  them  in  withholding  patronage,  its  members  would  have  been 
liable.  But  it  is  claimed,  in  effect,  that  a  business  can  be  destroyed 
with  impunity,  when  the  organization  has  become  so  extensive  that 
there  are  no  outside  patrons  to  control,  or  so  few  that  their  course  is 
a  matter  of  no  moment.  Upon  this  theory,  every  successful  instance 
of  coercion  would  increase  the  safety  with  which  another  coercion 
could  be  attempted,  and  when  coercion  had  been  pursued  until  but 


1276  »         MC  cuNE  V.  Norwich  city  gas  co. 

one  contumacious  person  remained,  immunity  would  be  complete. 
It  is  clear  that  the  law  cannot  concede  to  organizations  of  this  char- 
acter the  powers  and  immunities  claimed  for  their  association  by 
these  defendants,  and  retain  its  own  power  to  protect  the  individual 
citizen  in  the  free  enjoyment  of  his  capital  or  labor.^ 


SECTION  3. 

The  Effect  of  a  Dominating  Desire  to  Injure  the  Plaintiff. 


McCUNE  V.  NORWICH  CITY  GAS  CO.      . 
Supreme  Court  of  Errors  of  Connecticut,  1862.    30  Conn.  521. 

Sandford,  J.  This  is  a  motion  in  arrest  for  the  insufficiency  of 
the  declaration.  There  are  two  counts,  but  in  all  their  material  alle- 
gations they  are  substantially  alike,  and  the  same  questions  arise  on 
both  of  them. 

The  plaintiff  alleges  that  the  defendants  were  a  corporation, 
created  for  the  purpose,  and  engaged  in  the  business,  of  making, 
distributing  and  selling  illuminating  gas,  and  that  they  had  laid  down 
their  main  pipes  in  the  streets  and  lanes  of  the  city  for  the  convey- 
ance of  gas  to  their  customers ;  that  the  plaintiff's  rooms  had  been 
fitted  up  with  gas-pipes  and  fixtures,  connected  with  the  defendants' 
main  pipes,  and  that  for  some  time  immediately  prior  to  the  15th 
November,  1858,  the  defendants  had  by  means  of  said  pipes  sup- 
plied the  plaintiff  with  gas  for  lighting  said  rooms  for  a  certain  rea- 
sonable compensation  paid  therefor,  and  that  the  plaintiff  desired  to 
continue  to  light  his  said  rooms  with  gas  as  aforesaid,  and  was  ready 
and  willing  to  pay  to  the  defendants  a  reasonable  compensation  for 
the  same,  and  to  abide  by  all  the  reasonable  rules  and  regulations  of 
said  company,  and  requested  the  defendants  to  continue  to  supply 
said  rooms  w'ith  gas ;  and  that  it  then  became  and  was  the  duty  of 
the  defendants  to  continue  to  supply  the  plaintiff  with  gas  for  the 
purposes  aforesaid  on  the  conditions  aforesaid ;  yet  that  the  de- 
fendants, not  regarding  their  said  duty,  but  contriving  and  intending 
to  vex  and  annoy  the  plaintiff  in  the  use  and  enjoyment  of  his  said 
premises,  maliciously,  wantonly,  and  without  any  justifiable  cause, 
and  contrary  to  the  mind  and  will  of  the  plaintiff,  refused  to  supply 
the  plaintiff  with  gas,  and  shut  off  the  same  from  entering  the  gas 
pipes  of  said  rooms,  &c. ;  by  reason  whereof  the  plaintiff  has  been 
deprived  of  the  means  of  lighting  said  rooms  with  gas,  and  of  the 

^Accord:  Martell  v.  JVhite,  185  Mass.  255  (1904),  similar  fact;  and  see 
Jackson  V.  Stanfield,  fyost;  and  Shinola  Co.  v.  House  of  Krieg,  138  N.  Y.  Suppl. 
1015  (1912)  ;  and  compare  Downes  v.  Bennett,  63  Kans.  653  (1901),  in  which 
the  court  denied  the  injunction  on  the  ground  that  there  was  no  proof  that 
anv  member  of  an  association  was  prevented  from  dealing  with  the  plain- 
tiff. In  Bradley  v.  Pierson,  148  Pa.  St.  502  (1892),  the  court  refused  to 
admit  evidence  as  to  what  the  rules  of  the  defendant  association  required 
its  members  to  do,  when  a  workman,  blacklisted  by  one  member,  applied 
for  work  to  another ;  and  see  Baker  v.  Ins.  Co.  and  Trimble  v.  Ins.  Co.,  Note 
1  to  London  Guarantee  Co.  v.  Horn. 


MC  CUNE   V.    NORWICH    CITY    GAS    CO.  I277 

use  and  enjoyment  of  said  gas  fixtures,  and  has  been  put  to  great  ex- 
pense in  providing  other  means  of  Hghting  said  rooms,  &c." 

No  contract  for  the  supply  of  gas  for  any  definite  period  is  al- 
leged to  have  been  made  by  the  defendants,  nor  indeed  any  contract 
at  all.  The  entire  foundation  of  the  plaintiff's  claim,  as  it  is  set  out 
in  this  declaration,  rests  upon  the  supposed  legal  duty  or  obligation, 
independent  of  any  contract,  to  continue  the  supply.  But  no  facts 
are  stated  from  which  such  duty  or  obligation  arises,  and  the  allega- 
tion of  a  duty  or  liability  is  of  no  avail,  and  will  not  help  a  declara- 
tion, unless  the  facts  necessary  to  raise  it  are  stated. 

Had  the  defendants  agreed  to  furnish  the  'plaintiff  with  gas 
for  any  specified  time,  or  until  they  should  give  notice  of  their  in- 
tention to  discontinue  the  supply,  they  would  undoubtedly  have 
been  liable  in  damages  for  the  nonperformance  of  such  contract, 
but  the  contract  itself  must  have  been  set  up  in  the  declaration  and 
the  action  must  have  been  founded  upon  it.  And  perhaps  too,  had 
the  plaintiff  declaxed  upon  a  contract  by  the  defendants  to  supply 
him  with  gas  until  they  should  give  him  reasonable  notice  of  their 
intention  to  discontinue  such  supply,  the  jury  might  have  found  such 
contract  and  its  violation,  upon  proof  of  the  facts  and  circumstances 
detailed  in  this  declaration.  But  no  such  case  is  now  before  us,  and 
we  know  of  no  principle  upon  which  we  could  stand  in  holding  the 
defendants  liable  upon  the  facts  set  up  in  this  declaration. 

The  manufacture  and  sale  of  gas  is  a  business  which  may  be 
prosecuted  or  discontinued  at  the  will  of  the  party  engaged  in  it. 
The  relations  between  the  maker  and  the  consumer  originate  in  the 
contract  between  them,  and  their  respective  rights  and  obligations 
are  controlled  entirely  by  the  stipulations  of  such  contract,  and  as, 
(where  no  contract  prohibits,)  the  one  may  refuse  to  take  the  article 
at  his  pleasure,  so  may  the  other  at  his  pleasure  refuse  to  supply  it. 
We  discover  no  reason  for  subjecting  the  maker  of  gas  to  duties  or 
liabilities  beyond  those  to  which  the  manufacturers  and  vendors  of 
other  commodities  are  subjected  by  the  rules  of  law.  The  articles 
of  association  under  which  the  defendants  are  organized  and  exist 
as  a  corporate  body,  confer  upon  them  no  peculiar  powers,  and  im- 
pose no  peculiar  duties  or  obligations  affecting  the  question  now  be- 
fore us. 

The  allegation  that  the  defendant  cut  off  the  supply  of  gas 
maliciously  and  wantonly,  and  ivith  intent  to  injure  the  plaintiff,  is 
of  no  importance  in  the  determination  of  this  Cjuestion.  Where  a 
party  has  a  legal  right  to  do  a  particular  act  at  pleasure,  the  motive 
which  induced  the  doing  of  the  act  at  the  time  in  question  can  never 
affect  his  legal  liability  for  the  act,  whatever  effect  such  motive  may 
have  upon  the  quantum  of  damages,  when  his  liability  is  fixed. 

We  think  the  motion  in  arrest  ought  to  prevail,  and  we  advise 
accordingly. 

In  this  opinion  the  other  judges  concurred.^ 


^  Nor  is  it  more  unlawful  to  combine  with  others  for  such  purpose,  Col- 
lins v.  American  News  Co.,  34  Misc.  260  (N.  Y.  1901),  affirmed  68  App.  Div. 
639  (N.  Y.  1902),  defendants,  newspaper  publishing  companies,  agreed  to  dis- 


1278  ERTZ    V.    PRODUCE    EXCHANGE. 


ERTZ  V.  PRODUCE  EXCHANGE  OF  AlINNEAPOLIS. 
Supreme  Court  of  Minnesota,  1900.     79  Minn.  140. 

/  Appeal  from  the  order  of  the  district  court  of  Hennepin  county 

overruling  the  defendants'  demurrer  .to  the  plaintiff's  complaint. 
The  material  facts  alleged  in  the  complaint  are  these  •} 
The  plaintiff  is  and  has  been  for  some  time  a  commission  mer- 
■  chaiT^  bijying  and  ^^^'""g-  fnr"i  p'-'-'d'^''^  As  such  it  is  necessary  tor- 
him  to  buy  such  produce  in  the  Minneapolis  market  and  resell  the 
^ame  to  his  customers.  The  defendants  are  engaged  in  buying  and 
selhng  farm  produce  and  are  practically  all  persons,  firms  and  cor- 
porations so  engaged  in  Minneapolis  and  control  the  quantity  and 
price  of  such  produce  and  the  purchase  and  sale  thereof.  Up  to 
July  19,  1889,  the  plaintiff  was  accustomed  to  buy  from  tTiem.  But 
on  that  day  and  thereafter  the  defendants,  the  prpduce  exchanj^e. 
conspired  with  the  other  defendants  not  to  sell  to  or  buy  of  the 
plaintiff  any  farm  produce,  and  maliciously  solicited  and  procured 
from  them  and  from  many  other  persons  to  the  plaintiff  unknown, 
an  agreement  not  to  buy  or  sell  such  produce  from  or  to  the  plain- 
tiff and  did  induce  such  other  defendants  and  other  persons  not  to 
sell  to  him  or  buy  of  him.  In  pursuance  of  the  conspiracy  all  the 
defendants  have  refused  to  deal  with  the  plaintiff  and  have  circu- 
lated among  his  patrons  reports  that  he  was  unable  to  buy  such 
produce,  with  the  intent  to  induce  such  patrons  to  discontinue  doing 
business  with  the  plaintiff.  The  business  of  the  plaintiff,  by  reason 
of  the  premises,  has  been  ruined  and  he  has  been  damaged  thereby 
in  the  sum  of  $20,000. 

Start,  C.  J.  The  defendants  rely  upon  the  case  of  Bohn  Mfg. 
Co.  V.  HolUs,  54  Minn.  223,  55  N.  W.  11 19,  in  support  of  their  con- 
tention that  the  defendants'  acts  in  question  were  lawful.  The  gen- 
eral propositions  of  law  laid  down  in  the  decision  in  that  case  are 
sound  as  applied  to  the  facts  of  that  particular  case. 

continue  selling  their  papers  to  the  plaintiff,  a  newsdealer,  unless  he  aban- 
doned the  distribution  of  advertisements  which  threatened  injury  to  their 
own  advertising  business.  "There  is  no  place  in  any  system  of  jurisprudence 
yet  devised  for  the  principle  that  a  man  may  be  compelled  to  sell  his  goods 
or  his  labor  to  one  with  whom  he  does  not  wish  to  deal  merely  because  his 
refusal  to  do  so  may  cause  loss  to  him  who  wants  them."  See  Reynolds  v. 
Plumbers'  Material  Protective  Ass'n,  30  Misc.  709  (N.  Y.  1900)  ;  Schtdten  v. 
Bavarian  Brewing  Co.,  96  Ky.  224  (1894)  ;  and  Lough  v.  Outerbridg'e,  143  N. 
Y.  271  (1894),  p.  283;  and  Orr  v.  Home  Mut.  Ins.  Co.,  .12  La.  Ann.  255 
(1857)  ;  Hunt  v.  Simonds,  19  Mo.  583  (1854)  ;  Baker  v.  Ins.  Co.  and  Trimble 
v.  Prudential  Ins.  Co.,  64  S.  W.  915  (Ky.  1901),  cited  in  Note  1  to  Macauley 
v.  Tierney,  ante. 

As  to  what  Professor  James  Barr  Ames  regards  as  the  fundamental  dis- 
tinction between  a  malevolent  act  and  a  malevolent  misfeasance,  see  18  Harv. 
L.  R.  p.  416,  n.  1. 

"According  to  recent  French  authority,  even  the  refusal  to  contract  may 
in  certain  circumstances  be  an  abuse  of  right,"  F.  P.  Walton,  Esq.,  Motive  as 
an  Element  in  Torts,  22  Harv.  L.  R.  501,  p.  509,  see  cases  cited  by  him  in 
notes  4.  5  &  6. 

^The  allegations  in  the  complaint  are  slightly  condensed. 


ERTZ   V.    PRODUCE    EXCHANGE.  1 279 

It  is  to  be  noted  that  the  defendants  in  the  Bohn  case  had  simi- 
lar legitimate  interests  to  protect,  which  were  menaced  by  the  prac- 
tice of  wholesale  dealers  in  selling  lumber  to  contractors  and  con- 
sumers, and  that  the  defendants'  efforts  to  induce  parties  not  to  deal 
with  offending  wholesale  dealers  were  limited  to  the  members  of  the 
association  having  similar  interests  to  conserve,  and  that  there  was 
no  agreement  or  combination  or  attempt  to  induce  other  persons  not 
members  of  the  association  to  withhold  their  patronage  from  such 
wholesale  dealer.  In  this  respect  the  case  differs  esser\tially  from 
the  one  at  bar,  in  which  the  complaint  does  not  show  that  the  de- 
fendants had  any  legitimate  interests  to  protect  by  their  alleged  com- 
bination. On  the  contrary,  it  is  expressly  alleged  in  the  complaint 
that  the  combination,  which  was  carried  into  execution,  was  for  the 
^f^plp  pn.rp£iaAnf  I'njnri'ng  tliQ^^plaJntiff's  business,_andJlLnt  the  rlefend- — 
ants  conspired  to  induce  the  plaintitt's  patroiisand  persons,  other 
than  the  defendants,  to  refuse  to  deal  with  him.  Such  alleged  acts 
on  the  part  of  the  defendants  are  clearly  unlawful. 

It  is  true,  as  claimed  by  the  defendants  and  as  stated  in  the 
Bohn  case,  that  a  man,  not  under  contract  obligations  to  the  con- 
trary, has  a  right  to  refuse  to  work  for,  or  deal  with,  any  man  or 
class  of  men,  as  he  sees  fit,  and  that  the  right  which  one  man  may 
exercise  singly,  many  may  lawfully  agree  to  do  jointly  by  voluntary 
association,  provided  they  do  not  interfere  with  the  legal  rights  of 
others.     But  one  man  singly,  or  any  number  of  men  jointly,  havmgy 
no  legitimate  interests  to  protect,  may  not  lawfully  ruin  the  business/ 
of  another  by  maliciously  inducing  his  patrons  and  third  parties  not( 
to  deal  with  him.  '  See  Walker  v.  Cronin,  107  Mass.  555,  562 ;  DetTT? 
Winfree,  80  Tex.  400,  16  S.  W.  iii  ;  Graham  v.  St.  Charles,  47  La. 
An.  214,  16  So.  806;  Hopkins  v.  Oxley  S.  Co.,  49  U.  S.  App.  709. 
This  is  just  what  the  complaint  in  this  case  charges  the  defendants 
with  doing,  and  we  hold  that  it  states  a  cause  of  action.^ 


"" Accord:  Deh  v.  Winfree,  80  Tex.  400  (1891),  where  the  defendants 
were  also  traders  combining  to  refuse  to  supply  a  competitor  with  goods 
to  sell  and  to  induce,  by  means  not  stated,  others  not  members  of  the  com- 
bination to  do  the  same,  the  court  does  not  consider  the  question  as  to 
whether  such  conduct  is  justifiable  as  legitimate  competition ;  Globe,  etc., 
Ins.  Co.  v.  Firemen's  Fund  Ins.  Co.,  97  Miss.  148  (1910),  defendants,  with 
intent  to  ruin  the  plaintiff's  business,  induced  their  agents  to  leave  them. 
In  Olire  and  Stcrnenberg  v.  Van  Patten,  7  Tex.  Civ.  App.  630  (1894),  the 
defendants  were  associated  retail  merchants  who,  desiring  to  stop  the  prac- 
tice of  manufacturers  selling  directly  to  consumers,  and  the  plaintiff  was 
a  manufacturer  so  selling,  the  means  used  was  a  circular  sent  to  all  retailers, 
whether  members  of  the  association  or  not,  appealing  to  them  to  discourage 
this  practice,  as  detrimental  to  their  interests,  by  refusing  to  sell  to  the 
plaintiff,  Collard,  J.  said:  "It  can  not  be  held  that  the  defendants  had  the 
right  to  prevent  plaintiffs  from  selling  to  customers  or  that  such  interfer- 
ence by  them  (the  defendants)  was  serving  a  legitimate  purpose  connected 
with  their  own  business.  To  break  plaintiffs  down  as  competitors  for  the 
consumers'  trade  might,  it  is  true,  result  in  benefit  to  defendants,  but  such 
a  benefit  obtained  in  such  a  manner  could  not  be  deemed  a  legitimate  pur- 
pose within  the  meaning  of  the  opinion  quoted,"  (i.  e.,  that  in  Dcla  v.  J V in- 
free,  Norman  and  Pearson). 

To  withdraw  or  threaten  to  withdraw  one's  patronage  from  those  who 


I280  TUTTLE   V.    BUCK. 


TUTTLE  V.  BUCK. 
Supreme  Court  of  Minnesota,  1909.     107  Minn.  Rep.  145. 

Elliott,  J.  It  has  been  said  that  the  law  deals  only  with  exter- 
nals, and  that  a  lawful  act  cannot  be  made  the  foundation  of  an 
action  because  it  was  done  with  an  evil  motive.  In  Allen  v.  Flood, 
(1898)  A.  C.  I,  151,  Lord  Watson  said  that,  except  with  regard  to 
crimes,  the  law  does  not  take  into  account  motives  as  constitutiujo^  an 
element  of  civil  wrong.  In  Mayor  v.  Pickles,  (1895)  A.  C.  587, 
Lord  Halsbury  stated  that  if  the  act  was  lawful,  "however  ill  the 
motive  might  be,  he  had  a  right  to  do  it."  In  Raycroft  v.  Tayntor, 
68  Vt.  219,  35  Atl.  53,  33  L.  R.  A.  225,  54  Am.  St.  882,  the'court 
said  that,  "when  one  exercises  a  legal  right  only,  the  motive  which 
actuates  him  is  immaterial."  In  Jenkins  v.  Fozvler,  24  Pa.  St.  3087 
Mr.  Justice  Black  said  that  "malicious  motives  made  a  bad  act 
worse,  but  they  cannot  make  that  wrong  which,  in  its  own  essence, 
is  lawful."  This  language  was  quoted  in  Bohn  Mfg.  Co.  v.  ffollis, 
54  Minn.  223,  233,  55  N.  W.  11 19,  21  L.  R.  A.  337,  40  Am.  St.  319, 
and  in  substance  in  Ertz  v.  Produce  Exchange,  79  Minn.  140,  143, 
81  N.  W.  y^)?^  48  L.  R.  A.  90,  79  Am.  St.  433.  See  also  2  Cooley 
Torts  (3d  Ed.)  1505  ;  Auburn  v.  Douglas,  9  N.  Y.  444. 

Such  generalizations  are  of  little  value  in  determining  concrete 
cases.  They  may  state  the  truth,  but  not  the  whole  truth.  Each 
word  and  phrase  used  therein  may  require  definition  and  limitation. 
Thus,  before  we  can  apply  Judge  Black's  language  to  a  particular 
*case,  we  must  determine  what  act  is  "in  its  own  essence  law- 
ful." What  did  Lord  Halsbury  mean  by  the  words  "lawful  act"? 
What  is  meant  by  "exercising  a  legal  right"  ?  It  is  not  at  all  correct 
to  say  that  the  motive  with  which  an  act  is  done  is  always  immaterial, 
providing  the  act  itself  is  not  unlawful.  Numerous  illustrations  of 
the  contrary  will  be  found  in  the  civil  as  well  as  the  criminal  law. 

In  Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  loii,  51  L.  R.  A. 
339,  70  Am.  St.  330,  Mr.  Justice  Hammond  said :  "It  is  said  also 
that,  where  one  has  the  lawful  right  to  do  a  thing,  the  motive  by 
which  he  is  actuated  is  immaterial.  One  form  of  this  statement  ap- 
pears in  the  first  headnote  in  Allen  v.  Flood,  as  i-eported  in  (1898) 
A.  C.  I,  as  follows:  'An  act  lawful  in  itself  is  not  converted  by  a 
malicious  or  bad  motive  into  an  unlawful  act  so  as  to  make  the  doer 


deal  with  a  noncompetitor  where  the  object  is  to  punish  him  for  conduct 
personally  offensive  or  only  indirectly  injurious  to  one's  business,  is 
actionable  if  it  injure  his  business  and  may  be  restrained  by  injunction. 
Webb  v.  Drake,  52  La.  Ann.  290  (1899),  the  defendants,  merchants,  con- 
trolling the  greater  part  of  the  business  in  the  locality,  who,  resenting 
the  plaintiff's  conduct  as  assessor,  refused  to  buy  of  "drummers"  who  stopped 
at  plaintiff's  hotel;  Baldwin  v.  Liquor  Dcale's'  Assn.,  165  Mich.  98  (1911), 
customers  and  advertisers  in  the  complainant's  paper,  which  had  criticised 
the  manner  in  which  the  saloon  business  was  carried  on  in  the  town,  were 
coerced  into  withdrawing  their  patronage  by  threats  on  the  part  of  the 
defendants  that  otherwise  they  would  cease  to  deal  with  such  customers 
and  advertisers;  with  which  compare  Lewis  v.  Huie-Hodge  Lumber  Co.,  l^i 
La.  658  (1908). 


TUTTLE   T'.    r.LXK.  I28t 

of  the  act  liable  to  a  civil  action.'  If  the  meaning-  of  this  and  similar 
expressions  is  that  where  a  person  has  the  lawful  right  to  do  a  thing 
irrespective  of  his  motive,  his  motive  is  immaterial,  the  proposition 
is  a  mere  truism.  If,  however,  the  meaning  is  that  where  a  person, 
if  actuated  by  one  kind  of  a  motive,  has  a  lawful  right  to  do  a  thing, 
the  act  is  lawful  when  done  under  any  conceivable  motive,  or  that 
an  act  lawful  under  one  set  of  circumstances  is  therefore  lawful 
under  every  conceivable  set  of  circumstances,  the  proposition  does 
not  commend  itself  to  us  as  either  logically  or  legally  accurate." 

It  is  freely  conceded  that  there  are  many  decisions  contrary  to 
this  view;  but,  when  carried  to  the  extent  contended  for  by  the 
appellant,  we^think  they  are  unsafe,  unsound,  and  illy  adapted  to 
modern  conditions.  To  divert  to  one's  self  the  customers  of  a  busi- 
ness rival  by  the  offer  of  goods  at  lower  prices  is  in  the  general  a 
legitimate  mode  of  serving  one's  own  interest,  and  justifiable  as  fair 
competition.  But  when  a  man  starts  an  opposition  place  of  business, 
not  for  the  sake  of  profit  to  himself,  but  regardless  of  loss  to  him- 
self, and  for  the  sole  purpose  of  driving  his  competitor  out  of  busi- 
ness, and  with  the  intention  of  himself  retiring  upon  the  accomplish- 
ment of  his  malevolent  purpose,  he  is  guilty  of  a  wanton  wrong  and 
an  actionable  tort.  In  such  a  case  he  would  not  be  exercising  his 
legal  right,  or  doing  an  act  which  can  be  judged  separately  from  the  I 
motive  which  actuated  him.  To  call  such  conduct  competition  is  a' 
perversion  of  term.s.  It  is  simply  the  application  of  force  without 
legal  justification,  which  in  its  moral  quality  may  be  no  better  than 
iiighway  robbery. 

Nevertheless,  in  the  opinion  of  the  writer  this  complaint  is  in- 
-jufficient.  It  is  not  claimed  that  it  states  a  cause  of  action  for  slan- 
der. No  question  of  conspiracy  or  combination  is  involved. 
Stripped  of  the  adjectives  and  the  statement  that  what  was  done  was 
for  the  sole  purpose  of  injuring  the  plaintiff,  and  not  for  the  pur- 
pose of  serving  a  legitimate  purpose  of  the  defendant,  the  complaint 
states  facts  which  in  themselves  amount  only  to  an  ordinary  every- 
day business  transaction.  There  is  no  allegation  that  the  defendant 
was  intentionally  running  the  business  at  a  financial  loss  to  himself, 
or  that  after  driving  the  plaintiff'  out  of  business  the  defendant 
closed  up  or  intended  to  close  up  his  shop.  From  all  that  appears 
from  the  complaint  he  may  have  opened^the  barber  shop,  energet- 
ically  sought  business  from  his  acquaintances  and  the  customprs  ot- 
the  plaintiff,  and  as  a  result  of  his  enterprise  and  command  of  caoi- 
tal  obtained  it,  with  the  result  that  tlie  plaintiff,  from  want  of  capi- 
tal, acquaintance,  or  enterprise,  wp<;lTTiab]f  tn  stand__the  competition 
and  was  thus  driven  out  of  business.  The  facts  thus  alleged  do  not, 
in  my  opinion,  in  themselves,  without  reference  to  the  way  in  which 
they  are  characterized  by  the  pleader,  tend  to  show  a  malicious  and 
ivanton  wrong  to  the  plaintiff. 

A  majority  of  the  justices,  however,  are  of  the  opinion  that,  on 


1282  TUTTLE    Z'.    BUCK. 

the  principle  declared  in  the  foregoing  opinion,  the  complaint  states 
a  cause  of  action,  and  the  order  is  therefore  affirmed. 

Affirmed. 
Jaggard,  J.,  dissents. 

^  In  18  Harvard  Law  Review  420,  the  late  Professor  James  Barr  Ames 
expressed  his  opinion  that  the  defendant  would  be  liable  under  facts  sub- 
stantially identical  with  those  in  the  principal  case,  which  facts,  however, 
he  thought  impossible  of  occurrence.  Accord:  Boggs  v.  Duncan-Schcll 
Furniture  Co.,  143  N.  W.  482  (Iowa  1913),  the  defendants'  agency  for  the 
sale  of  sewing  machines  having  been  terminated  by  the  maker  and  the  plain- 
tiff having  been  appointed  as  successor,  the  defendant  threatened  to  drive 
the  plaintiff  out  of  business  with  the  same  machine.  The  defendant  thereupon 
procured  some  old  machines  of  the  same  make  and  advertised  them  as  just 
received,  the  latest  pattern  and  equipped  with  the  most  modern  appliances, 
and  for  sale  at  practically  half  the  price  charged  by  the  plaintiff.  The 
plaintiff  attempted  to  buy  up  these  old  machines  and  complained  of  the  ad- 
vertisement as  hurting  his  business.  The  defendant  refused  to  sell  them 
and  said  that  he  did  not  care  what  effect  his  advertisement  had  he  advertised 
just  as  he  pleased.  It  was  held  that  the  plaintiff  might  recover  for  the  harm 
done  by  the  defendant. 

Contra:  Passaic  Print  Works  v.  Ely  &  Walker  Dry  Goods  Co.,  105 
Fed.  163,  44  C.  C.  A.  426  (1900),  demurrer  sustained  to  a  declaration  in 
which  the  plaintiff,  a  manufacturer  of  calicoes,  alleged  that  the  defendant. 
a  wholesale  dealer  in  dry  goods,  conspiring  with  persons  unknown  and  ma- 
liciously intending  to  injure  the  plaintiff  in  its  business,  cause  it  great  loss 
and  ruin  its  trade  with  jobbers  in  St.  Louis,  had  advertised  a  stock  of 
goods  owned  by  the  defendant  but  of  the  plaintiffs'  manufacture,  for  sale 
at  prices  less  than  that  fixed  by  it,  so  causing  jobbers,  who  had  bought  its 
goods,  to  cancel  their  contracts  or  demand  rebates  in  price,  and  making 
other  jobbers  afraid  to  buy  its  goods  except  in  small  quantities  and  at  low 
prices.  Sanborn,  J.,  dissented  on  the  ground  that  these  acts  done  with  such 
an  object,  required  justification,  but  conceded  that  they  could  be  justified  if 
done  for  the  purpose  of  selling  them  for  what  the  defendants  believed  to  be 
their  own  gain  or  in  competition  with  the  plaintiff  for  trade;  and  see  Cole- 
ridge, C.  J.,  in  giving  judgment  for  the  defendant  in  the  Court  of  Queen's 
Bench  in  The  Mogul  Steamship  Co.  v.  McGregor,  L.  R.  21  Q.  B.  D.,  pp.  544. 
552,  "The  question  comes  at  last  to  this,  what  was  the  character  of  these" 
(the  defendants')  "acts  and  what  was"  (their)  "motive  in  doing  them?'" 


CHAPTER  V. 

Regulation  of  the  Exercise  of  Mutually  Conflicting  Rights. 


SECTION  1. 
Rights  Enjoyed  by  All  Citizens  (Use  of  Highways). 

CALLANAN  z:  OILMAN. 
Court  of  Appeals  of  New  York.  1887.    107  A'.  Y.  360. 

Earl,  J.  The  primary  purpose  of  streets  is  use  by  the  public 
for  travel  and  transportation,  and  the  general  rule  is  that  any  ob- 
struction of  a  street  or  encroachment  thereon  which  interferes  with 
such  use  is  a  public  nuisance.  But  there  are  exceptions  to  the  gen- 
eral rule  born  of  necessity  and  justified  by  public  convenience.  An 
abutting  owner  engaged  in  building  may  temporarily  encroach  upon 
the  street  by  the  deposit  of  building  materials.  A  tradesman  may 
convey  goods  in  the  street  to  or  from  his  adjoining  store.  A  coach 
or  omnibus  may  stop  in  the  street  to  take  up  or  set  down  passengers, 
and  the  use  of  a  street  for  public  travel  may  be  temporarily  inter- 
fered with  in  a  variety  of  other  ways  without  the  creation  of  what 
in  law  is  deemed  to  be  a  nuisance.  But  all  such  interruptions  and 
obstructions  of  streets  must  be  justified  by  necessity.  It  is  not  suf- 
ficient, however,  that  the  obstructions  are  necessary  with  reference 
to  the  business  of  him  who  erects  and  maintains  them.  They  must 
also  be  reasonable  with  reference  to  the  rights  of  the  public  who 
have  interests  in  the  streets  which  may  not  be  sacrificed  or  disre- 
garded. Whether  an  obstruction  in  the  street  is  necessary  and  rea- 
sonable must  generally  be  a  question  of  fact  to  be  determined  upon 
the  evidence  relating  thereto.  A  reference  to  a  few  cases  will  show 
what  courts  have  said  upon  this  subject. 

In  Rex  V.  Russell,  6  East  427,  where  the  defendant,  a  wagoner, 
was  indicted  for  occupying  one  side  of  a  public  street  before  his 
warehouse  for  loading  and  unloading  his  wagons,  the  court  said 
"that  it  should  be  fully  understood  that  the  defendant  could  not  le- 
gally carry  on  any  part  of  his  business  in  the  public  street  to  the 
annoyance  of  the  public;  that  the  primary  object  of  the  street  was 
for  the  free  passage  of  the  public,  and  anything  which  impeded 
that  free  passage  without  necessity  was  a  nuisance  ;  that  if  the  nature 
of  the  defendant's  business  was  such  as  to  require  the  loading  and 
unloading  of  many  more  of  his  wagons  than  could  convenientlv  be 
contained  within  his  own  private  premises,  he  must  either  enlarge 
his  premises  or  remove  his  business  to  some  more  convenient  spot."^ 

^Benjamin  v.  Starr,  L.  R.,  9  C.  P.  400  (1874). 

1283 


1284  CALLAXAX    r.    GILMAN, 

In  Rev  V.  Cross,  3  Camp.  224,  the  defendant  was  indicted  for  allow- 
ing his  coaches  to  remain  an  unreasonable  time  in  a  public  street, 
and  the  court  said :  "Every  unauthorized  obstruction  of  a  highway 
to  the  annoyance  of  the  king's  subjects  is  a  nuisance.  The  king's 
highway  is  not  to  be  used  as  a  stable  yard.  *  *  *  A  stage  coach 
may  set  down  or  take  up  passengers  in  the  street,  this  being  neces- 
sary for  public  convenience ;  but  it  must  be  done  in  a  reasonable 
time,  and  private  premises  must  be  provided  for  the  coach  to  stand 
while  waiting  between  one  journey  and  the  commencement  of  an- 
other." In  Rex  V.  Jones,  3  Camp,  230,  the  defendant,  a  lumber 
merchant  in  London,  was  indicted  for  the  obstruction  of  a  part  of  a 
street  in  the  hewing  and  sawing  of  logs,  and  the  court  said :  "If  an 
unreasonable  time  is  occupied  in  delivering  beer  from  a  brewer's 
dray  into  the  cellar  of  a  publican,  this  is  certainly  a  nuisance.  A  cart 
or  wagon  may  be  unloaded  at  a  gateway,  but  this  must  be  done  with 
promptness.  So  as  to  the  repairing  of  a  house,  the  public  must  sub- 
mit to  the  inconvenience  occasioned  necessarily  in  repairing  the 
house ;  but  if  this  inconvenience  should  be  prolonged  for  an  unrea- 
sonable time,  the  public  have  a  right  to  complain,  and  the  party 
may  be  indicted  for  a  nuisance.  The  rule  of  law  upon  this  subject 
is  much  neglected,  and  great  advantages  would  arise  from  a  strict, 
steady  application  of  it.  I  cannot  bring  myself  to  doubt  the  guilt 
of  this  defendant.  He  is  not  to  eke  out  the  inconvenience  of  his  own 
premises  by  taking  in  the  public  highwa}'-  with  his  lumber  yard,  and 
if  the  street  be  too  narrow  he  must  move  to  a  more  convenient  place 
for  carrying  on  his  business.""  In  Commonzvealth  v.  Passmore,  i  S. 
&  R.  217,  the  defendant,  an  auctioneer,  was  indicted  for  a  nuisance 
in  placing  goods  on  the  foot-way  and  carriage-way  of  one  of  the 
public  streets  of  the  city  and  suffering  them  to  remain  for  the  pur- 
pose of  being  sold  there,  so  as  to  render  the  passage  less  convenient, 
although  not  entirely  to  obstruct  it,  and  the  court  said :  "It  is  true 
necessity  justifies  actions  which  would  otherwise  be  nuisances.  It 
is  true,  also,  that  this  necessity  need  not  be  absolute ;  it  is  enough 
if  it  be  reasonable.  No  man  has  a  right  to  throw  wood  or  stones 
into  the  street  at  his  pleasure.  But,  inasmuch  as  fuel  is  necessary, 
a  man  may  throw  wood  into  the  street  for  the  purpose  of  having  it 
carried  to  his  house,  and  it  may  lie  there  a  reasonable  time.  So, 
because  building  is  necessary,  stones,  bricks,  lime,  sand  and  other 
materials  may  be  placed  in  the  street,  provided  it  be  done  in  the 
most  convenient  manner."     On  the  same  principle  a  merchant  may 


''Accord:  Emerson  v.  Babcock,  66  Iowa  257  (1885),  hay  scales  placed 
upon  public  street;  Kerr  v.  Forgue,  54  111.  482  (1870),  and  McCloughry  v. 
Finnev,  37  La.  Ann.  27   (1885),  goods  stored  on  sidewalk. 

^Accord:  Wood  v.  Mears,  12  Ind.  515  (1859)  ;  Vanolinda  v.  Lothrop,  21 
Pick.  292  (Mass.  1838)  ;  Clark  v.  Fry,  8  Ohio  St.  358  (1858)  ;  Palmer  v.  Sil- 
verthorn,  32  Pa.  65  (1858);  Chicago  v.  Rohbins,  2  Black  418  (U.  S.  1862), 
p.  424,  scmble,  and  this  includes  the  right  to  deposit  on  the  street  for  removal 
the  earth  excavated  in  such  operations,  Hiinhausoi  v.  Bond,  36  Wis.  29 
(1874)  ;  see  Piollct  v.  Simmers,  106  Pa.  St.  95  (1884),  where  a  barrel  on  wheels 
used  bi^  an  abutting  owner  to  whitewash  his  fence,  was  left  over  Sunday  on 


C  ALLAN  AX    7'.    OILMAN. 


128  = 


have  his  goods  placed  in  the  street  for  the  purpose  of  removing  them 
to  his  store  in  a  reasonable  time.  But  he  has  no  right  to  keep  them 
in  the  street  for  the  purposes  of  selling  them  there,  becatise  there  is 
no  necessity  for  it.*  *  *  *  I  can  easily  perceive  that  it  is  for  the 
convenience  and  interest  of  an  auctioneer  to  place  his  goods  in  the 
street  because  it  saves  the  expense  of  storage.  But  there  is  no  more 
necessity  in  his  case  than  in  that  of  a  private  merchant.  It  is  equally 
in  the  power  of  the  auctioneer  and  the  merchant  to  procure  ware- 
houses and  places  of  deposit  in  proportion  to  the  extent  of  their 
business."  In  The  People  v.  Cunningham,  i  Denio,  524,  the  de- 
fendants were  indicted  for  obstructing  one  of  the  streets  in  the  city 
of  Brooklyn,  and  the  court  said :  "The  fact  that  the  defendants' 
business  was  lawful  does  not  afford  them  a  justification  in  annoying 
the  publican  transacting  it;  it  gives  them  no  right  to  occupy  the 
public  highway  so  as  to  impede  the  free  passage  of  it  by  the  citizens 
generally..  The  obstruction  complained  of  is  not  of  the  temporary 
characteV  which  may  be  excused  within  the  necessary  qualifications 
referred  to  in  the  cases  cited,  but  results  from  a  systematic  course 
of  carrying  on  the  defendants'  business.  It  is  said  that  this  business 
cannot  be  carried  on  in  any  other  manner  at  that  place  so  advan- 
tageously either  to  individuals  or  the  public.  The  answer  to  this 
is  to  be  found  in  the  observations  of  the  court  in  Russell's  Case 
(above  cited).  They  must  either  enlarge  their  premises  or  remove 
their  business  to  some  more  convenient  spot.'  Private  interests  must 
be  made  subservient  to  the  general  interest  of  the  community."^  In 
IVelsh  V.  IVilson,  loi  N.  Y.  254,  a  case  where  the  defendant  ob- 
structed a  sidewalk  in  the  city  of  New  York  with  skids  a  few  min- 
utes while  he  was  engaged  in  removing  two  large  cases  of  mer- 
chandise from  his  store  to  a  truck,  in  consequence  of  which  the 
plaintiff  claimed  to  have  been  injured  while  passing  through  the 
street,  we  said:  "The  defendant  had  the  right  to  place  the  skids 
across  the  sidewalk  temporarily  for  the  purpose  of  removing  the 
case  of  merchandise.  Every  one  doing  business  along  a  street  in 
a  populous  city  must  have  such  a  right  to  be  exercised  in  a  reason- 
able manner  so  as  not  to  unnecessarily  encumber  and  obstruct  the 
sidewalk."  In  Mathews  v.  Kelsey,  58  Me.  56,  the  court  said :  "As 
an  incident  to  this  right  of  transit,  the  public  have  a  right  to  load  and 
unload  such  vehicles  (in  the  street  or  from  the  street)  as  they  find 


the  highway  by  the  side  of  the  traveled  way.  In  Palmer  v.  Silver  thorn,  32 
Pa.  65  (1858).  it  is  held  that  abutting  owners  have  the  right  to  place  such 
building  material  in  the  street  irrespective  of  the  necessity  of  so  doing  on 
the  particular  occasion,  contra,  Wood  v.  Mears,  12  Ind.  516  (1859). 

^Accord:  Lavery  v.  Hannigan,  20  Jones  &  S.  463  (N.  Y.  1885),  goods 
-displayed  on  part  of  sidewalk  enclosed  by  awnings;  State  v.  Laverock,  34  N. 
J.  L.  201  (1870)  ;  CommonwcaUh  v.  Rugglcs,  88  Mass.  588  (1863),  fairs  held 
in  highways,  in  England  a  custom  to  hold  such  fairs  is  a  good  custom,  El- 
zvood  v.  Bullock,  13  L.  J.  Q.  B.  330;  Commomvealth  v.  Wentzvorth,  Brightly 
318  (Pa.  1822);  5";.  John  v.  Mayor,  3  Bosw.  483  (N.  Y.  1858),  booths  and 
stalls  for  sale  of  goods  placed  on  sidewalks,  aliter  where  such  stalls  are  so 
placed  while  a  market  house  is  undergoing  repair,  5"^  John  v.  Mayor,  6 
Duer  315  (N.  Y.  1857). 

'See  State  v.  Chicago,  M.  &  St.  P.  R.  Co.,  77  Iowa  442  (1889). 


1286  CALLAXAX    V.    OILMAN. 

it  convenient  to  use.  But  in  this  respect  each  individual  is  restrained 
by  the  rights  of  others.  He  must  do  his  work  in  such  careful  and 
prudent  manner  as  not  to  interfere  unreasonably  with  the  conve- 
nience of  others."^ 

Now  what  are  the  facts  of  this  case?  Both  the  plaintiffs  and 
the  defendant  were  extensive  retail  and  wholesale  grocers  having 
stores  near  to  each  other  on  the  south  side  of  Vesey  street  in  the 
city  of  New  York ;  and  a  large  portion  of  the  plaintiffs'  customers, 
in  order  to  reach  their  store,  were  obliged  to  pass  upon  the  sidewalk 
in  front  of  the  defendant's  store.  Goods  were  taken  to  and  from 
the  defendant's  store  by  means  of  trucks  loaded  in  the  street.  The 
trucks  were  placed  in  the  street  adjoining  the  sidewalk  and  then  a 
bridge  made  of  two  skids  planked  over  so  as  to  make  a  plank-way 
three  feet  wide  and  fifteen  feet  long,  with  side  pieces  three  and  one- 
half  inches  high,  was  placed  over  the  sidewalk  with  one  end  resting 
upon  the  stoop  of  the  defendant's  store  and  the  other  end  upon  a 
wooden  horse  outside  of  the  sidewalk  near  the  truck  to  be  loaded. 
This  bridge  was  elevated  above  the  sidewalk  at  the  inner  end  about 
twelve  inches  and  at  the  outer  end  about  twenty  inches,  thus  en- 
tirely obstructing  the  sidewalk,  and  goods  were  conveyed  over  this 
bridge  to  and  from  the  store.  Persons  wishing  to  pass  upon  the 
sidewalk  in  front  of  the  store,  when  the  bridge  was  in  place,  were 
obliged  to  step  upon  the  stoop  and  go  around  that  end  of  the  bridge. 
The  bridge  was  usually  removed  when  not  in  use ;  but  there  was 
uncontradicted  evidence  that  it  was  sometimes  permitted  to  remain 
in  position,  when  not  in  use,  for  ten  or  fifteen  minuses,  and  that  it 
sometimes  remained  in  position  when  in  use  one  hour,  one  hour  and 
a  half  and  sometimes  even  two  hours ;  and  the  court  found  that  the 
bridge  thus  remained  in  position  across  the  sidewalk  from  four  to 
five  hours  each  business  day  between  the  hours  of  nine  o'clock  a.  m., 
and  five  p.  m.,  and  that  it  obstructed  the  sidewalk  the  greater  part 
of  every  business  day.  Such  an  extensive  and  continuous  use  of  the 
sidewalk  cannot  be  justified.  It  was  a  practical  appropriation  by  the 
defendant  of  the  sidewalk  in  front  of  his  store  to  his  private  use  in 
disregard  of  the  public  convenience.  Even  if  in  some  sense  such 
use  was  necessary  to  the  convenient  and  profitable  transaction  of 
his  business,  and  if  the  obstruction  of  the  sidewalk  was  no  more  and 
even  less  than  it  would  be  by  any  other  method  of  doing  business, 
these  circumstances  do  not  justify  the  obstruction.  If  the  defendant 
cannot  transact  his  extensive  business  at  that  place  without  thus 
encroaching  upon,  obstructing  and  almost  appropriating  the  side- 
walk during  the  business. hours  of  the  day,  he  must  either  remove 


^Accord:  Haight  v.  Keokuk.  4  Iowa  199  (18.%)  ;  Hahev  v.  Rapid  Tran- 
sit St.  R.  Co.,  47  N.  J.  Eq.  380  (1890)  ;  Jochetn  v.  Robinson,  66  Wis.  638  (1886), 
72  Wis.  199  (1888),  and  see  Denby  v.  IViller.  59  Wis.  240  (1884);  Sikes  v. 
Manchester,  59  Iowa  65  (1882);  Judd  v.  Fargo,  107  Mass.  264  (1871),  ve- 
hicles standing  in  street  while  being,  or  waiting  to  be,  loaded  or  unloaded ; 
see  Vanolinda  v.  Lothrop,  21  Pick.  292  (Mass.  1838).  The  length  of  time 
the  goods  or  vehicles  remain  on  the  sidewalk  or  street  and  the  fact  that  the 
highway  is  much  or  little  frequented  are  important  factors  in  determining 
whether  the  obstruction  is  reasonable,  Judd  v.  Fargo,  107  Mass.  264  (1871). 


FRITZ    Z'.    HOBSON.  128/ 

his  business  to  some  other  place  or  enlarge  his  premises  so  as  to 
accommodate  it.  It  was  incumbent  upon  the  defendant  to  show,  not 
only  that  the  use  he  made  of  the  sidewalk  was  necessary  in  his  busi- 
ness, but  also  that  it  was  reasonable  in  reference  to  the  public  con- 
venience. That  it  was  unreasonable  is  too  clear  for  dispute.'^  He 
might  use  the  bridge  to  load  or  unload  a  single  truck,  and  this  he 
could  do  at  intervals  during  the  day,  at  no  one  time  obstructing  the 
street  for  any  considerable  length  of  time.  But  there  is  no  authority 
and  no  rule  of  law  which  would  warrant  such  an  obstruction  daily 
for  hours,  or  even  one  hour  continuously.  The  defendant  was,  there- 
fore, guilty  of  a  public  nuisance.^ 


FRITZ  V.  HOBSON. 
Chancery  Division,  1880.    L.  R.  1880,  14  Ch.  Div.  542. 

This  action  brought  to  restrain  an  alleged  nuisance  committed 
by  the  defendant,  and  for  damages. 

Fry,  J,,  after  stating  the  nature  of  the  relief  claimed,  and  ob- 
serving that  the  trespasses  proved,  as  distinguished  from  the  nui- 
sance, were  of  the  most  trifling  descriptions,  and  that  he  could  only 
award  the  plaintiff  one  farthing  damages  in  respect  of  them,  con- 
tinued : — 

The  serious  part  of  the  case  arises  out  of  the  allegation  of  loss 
of  custom  to  the  plaintiff  in  his  character  of  a  dealer  in  articles  of 
antiquity,  old  china,  and  so  forth,  and  of  a  tailor. 

With  regard  to  the  business  of  a  tailor  there  is  no  evidence  of 
loss ;  the  other  business  I  shall  consider  presently. 

The  plaintiff  puts  his  case  in  two  ways.  He  says,  first,  tiie  de- 
fendant has  created  a  public  nuisance,  which  has  resulted  in  special 
or  peculiar  damage  to  me  in  consequence  of  the  place  where  I  re- 
side and  the  place  where  the  nuisance  has  been  committed  being  so 
near  to  each  other ;  and,  secondly,  I  have  a  private  right  of  entrance 
from  the  highway  to  my  dwelling-house,  and  that  private  right  the 
defendant  has  interfered  with. 

Before  I  consider  those  rights  separately,  I  must  inquire 
whether  the  defendant's  user  of  the  roadway  of  Fetter  Lane  and  the 
plaintiff's  passage  has  been  reasonable  or  unreasonable.  The  law 
with  regard  to  the  point  appears  to  be  easily  gathered  from  one  or 


'As  to  the  function  of  court  and  jury  in  determining  whether  the  de- 
fendant's use  of  the  highway  is  reasonable,  compare  Jochem  v.  Robinson 
72  Wis.  199  (1888). 

^Accord:  Flynn  v.  Taylor.  127  N.  Y.  596  (1891).  The  burden  rests  on 
the  abutting  owner  to  show  that  his  use  is  reasonable,  Jochem  v.  Robinson  66 
Wis.  638  (1886)  ;  Graves  v.  Shattuck,  35  N.  H.  257  (1857).  The  fact  that 'the 
other  owners  make  the  same  use  of  the  highway  is  no  justification  if  it  be 
unreasonable,  Commonwealth  V.  Passmore,  Judd  v.  Fargo,  107  Mass  264 
(1871),  McCloughry  v.  Finney,  Zl  La.  Ann.  27  (1885). 

As  to  the  power  of  a  municipality  to  authorize  such  obstructions,  see  Chap- 
man V.  Lincoln,  84  Nebr.  534  (1909),  25  L.  R.  A.  (N.  S.)  400,  with  exhaustive 
note. 


1288  FRITZ    r.    HOBSOX. 

two  cases.    In  Rex  v.  Jones,  3  Camp.  230,  Lord  Ellenborough  said : 
"So  as  to  the  repairing  of-  a  house — the  pubHc  must  submit  to  the 
inconvenience  occasioned  necessarily  in  repairing  the  house ;  but,  if 
this  inconvenience  is  prolonged  for  an  unreasonable  time,  the  public 
have  a  right  to  complain,  and  the  party  may  be  indicted  for  a  nui- 
sance."'    Again,  in  Benjamin  v.  Storr,  Law  Rep.  9  C.  P.  400,  the 
question  left  by  JMr.  Justice  Honeyman  to  the  jury  w^as,  p.  402, 
"whether  or  not  the  obstruction  of  the  street  was  greater  than  was 
reasonable  in  point  of  time  and  manner,  taking  into  consideration 
the  interests  of  all  parties,  and  without  unnecessary  inconvenience, 
telling  them  that  they  were  not  to  consider  solely  what  was  conve- 
nient for  the  business  of  the  defendants."     The  defendant  has  as- 
serted at  the  Bar  an  unqualified  and  absolute  right  to  approach  the 
area  of  the  building  operations  which  he  was  carrying  on  by  the 
nearest  road,  to  any  extent,  for  any  materials,  for  any  time,  and 
without    regard    to    the   plaintifif's    convenience    or    inconvenience. 
Such  a  claim  is,  in  my  judgment,  untenable.     It  appears  to  me  to 
be  the  expression  of  the  selfish  and  not  of  the  social  man,  of  the 
man  who  recollects  his  rights  but  forgets  his  obligations,  and  human 
life  could  not  be  carried  on  if  such  extreme  rights  w'ere  asserted 
and  insisted  on.    The  question  I  have  to  decide  is  whether  the  user 
of  the  road  or  the  roads  in  question  by  the  defendant  w^as,  having 
regard  to  all  the  circumstances  of  the  case,  reasonable.     The  cir- 
cumstances are  undoubtedly  peculiar.    The  block  of  building  which 
the  defendant  had  to  erect  could  be  approached  from  roads  only  by 
means  of  three  passages — Crane  Court,  leading  from  Fleet  Street; 
Fleur-de-Lis  Court,  leading  from  the  southern  part  of  Fetter  Lane: 
and  that  w^iich  has  been  called  for  convenience  the  plaintilt's  pas- 
sage/ leading  directly  from  the  northern  part  of  the  site  of  the  new 
buildings  into  Fetter  Lane.    The  last  passage  was  undoubtedly  the 
most  convenient  mode  of  access  for  the  defendant  to  the  site.     It 
was  the  most  convenient  for  several  reasons.     It  was  the  shortest, 
and  it  also  led  to  that  portion  of  the  site  which  the  defendant  used 
as  a  yard  for  the  purpose  of  his  building  operations.     Moreover,  the 
operations  which  the  defendant  had  to  carry  on  were  very  consid- 
erable.   The  building  contract  was  for  nearly  £6000.    He  had  to  re- 
move a  very  large  quantity  of  old  building  materials  and  rubbish, 
the  removal  of  which  occupied  from  the  21st  of  May  to  the  9th  of 
July.     He  had  to  carry  in  a  very  large  quantity  of  new  materials, 
and  the  building  operations  lasted  for  several  months.    L'nder  these 
circumstances,  it  appears  to  me  that  to  carry  on  thfe  whole  of  the 
defendant's  operations  through  the  plaintiff's  passage  was  not  rea- 
sonable.    I  am  unable  to  see  why  a  large  proportion  of  the  old  ma- 
terials might  not  have  been  carried  down  Crane  Court,  or  why  a 
much  larger  proportion  might  not  have  been  carried  down  Fleur- 
de-Lis  Court,  and  the  inconvenience  necessarily  created  by  carrying 
away  rubbish  of  that  character  distributed  over  the  whole  of  the 
passages  which  gave  access  to  the  site.     Further  than  that,  it  ap- 


*Upon  which   was   the   entrance   to  the   plaintiff's   shop   and   one   of   the 
windows  in  which  his  wares  were  shown. 


FRITZ    Z'.    IIOBSON".  I289 

pears  to  me  that  the  defendant,  having  regard  to  the  peculiar  dif- 
ficuhies  of  the  case,  should  have  made  some  different  arrangement 
as  to  the  time  during  which  his  operations  were  carried  on.  In  fact 
he  carried  them  on  during  the  busiest  hours  of  the  day,  and  took 
no  pains  to  diminish  the  inconvenience  by  carrying  them  on  early 
in  the  morning  or  late  at  night. 

What  was  the  result  to  the  plaintiff  of  the  operations  thus  car- 
ried on  by  the  defendant?  Undoubtedly  the  passage  by  his  house 
was  for  a  long  period  of  time  practically  devoted  to  the  defendant's 
building  operations.  ^For  exactly  how  many  days  it  was  unsafe  to 
cross  that  passage  I  do  not  know,  but  certainly  for  months  those 
operations  went  on,  and  it  appears  to  me  that  they  went  on  in  such 
a  manner  as  to  render  it  exceedingly  difficult,  if  not  impossible,  for 
persons  coming  up  from  Fleet  Street  on  the  eastern  side  of  Fetter 
Lane,  to  obtain  access  to  the  plaintiff's  premises,  and  the  natural 
effect  would  be  to  drive  away  persons  who  might  have  become  cus- 
tomers of  the  plaintiff,  and  to  render  the  access  to  his  house  so  dif- 
ficult that  most  persons  would  abandon  passing  along  that  side  of 
the  road.  And  there  is  some  evidence  that  persons  w^ho  were  in  the 
frequent  habit  of  going  to  the  plaintiff's  house  as  customers  ceased 
to  do  so  during  a  portion  of  the  time  in  which  these  operations  were 
going  on. 

What  then  has  been  the  result  of  these  operations  to  the  plain- 
tiff? I  have  come  to  the  conclusion  that  the  plaintiff  has  proved  that 
he  has  sustained  considerable  loss  in  his  business  as  a  dealer  in  old 
curiosities  in  consequence  of  the  defendant's  operations,  and  al- 
though it  is  very  difficult  to  assess  the  amount  of  that  loss,  I  have, 
sitting  as  a  judge  of  fact,  arrived  at  the  conclusion  that  he  has  sus- 
tained loss  to  the  extent  of  i6o.-  I  shall  direct  the  whole  sum  which 
I  have  mentioned,  and  which,  as  I  have  said,  includes  the  damages 
sustained  subsequent  to  the  issue  of  the  writ,  be  paid  by  the  de- 
fendant to  the  plaintiff.^ 


"A  part  of  the  opinion  is  omitted  holding  that  the  plaintiff's  damage  was 
sufficiently  special  to  him  to  give  him  a  private  right  of  action  though  the 
nuisance  was  public,  and  that  the  fact  that  the  nuisance  had  been  discon- 
tinued before  decree  did  not  oust  the  jurisdiction  of  equity  once  having  ac- 
quired but  the  court  might  enter  a  decree  for  the  payment  of  the  damages  sus- 
tained up  to  the  time  of  said  discontinuance. 

^  In  the  following  cases  the  defendant's  use  of  the  highway  was  held 
unreasonable  as  interfering  with  the  rights  of  the  abutting  owner,  Cohen  v. 
New  York,  113  N.  Y.  532  (1889),  storing  a  wagon  in  street  in  front  of 
plaintiff's  premises,  Turner  v.  Holtznian,  54  Md.  148  (1880),  stage  coach  kept 
standing  where  it  blocked  access  to  a  camp  meeting;  BranaJian  v.  Cincinnati 
Hotel  Co.,  39  Ohio  St.  iiZ  (1883),  hackney  coaches  standing  immediately  in 
front  of  plaintiff's  premises;  see  Graves  v.  Shattuck,  35  N.  H.  257  (1857), 
frame  building  being  moved  through  the  streets  of  a  town  at  the  peril  of  in- 
juring the  shade  trees  growing  thereon.  To  allow  a  horse  and  carriage  to 
stand  in  front  of  a  house  while  the  owner  makes  a  business  or  social  call  is 
not  an  unreasonable  interference  with  the  public's  right  to  the  unobstructed 
use  of  the  highway,  Norristown  v.  Moyer,  67  Pa.  355  (1871),  p.  367;  but  to 
stand  one's  wagons  in  the  street,  for  the  purpose  of  selling  goods  therefrom, 
is;  Davis  v.  Bangor,  42  Maine  522  (1856),  semble.  But  see  State  v.  Edens, 
85  N.  Car.  522  (1881),  holding  that  such  a  merely  temporary  use,  unlike  a 
permanent  structure  in  the  highway,  is  only  a  nuisance   if   it  substantially 


1290  LETTS    V.    KESSLER. 

SECTION  2. 

Acts  Fcrmitted  in  Order  to  Secure  to  Property  Owner  thv 
Freedom  of  Choice  in  Their  Use  Thereof. 


KNOWLES  V.  RICHARDSON. 
\Modern  Reports,  SS  (1669). 

Error  of  a  judgment  in  the  common  pleas  in  an  action  upon  the  case,  for 
obstructing  a  prospect.  Sympson.  The  stopping  of  a  prospect  is  no  nuisance, 
and  consequently  no  action  on  the  case  will  lie  for  it.  Aldred's  case,  Rep.  9, 
is  express,  that  for  obstructing  a  prospect,  being  matter  of  delight  only,  and 
not  of  necessity,  an  action  will  not  lie.  Twisden.  Why  may  not  I  build  up  a 
wall,  that  another  man  may  not  look  into  my  yard?  Prospects  may  be 
stopped,  so  you  do  not  darken  the  light.    Judgrnent  nisi,  etc. 


LETTS  V.  KESSLER. 
Supreme  Court  of  Ohio,  1896.    54  Ohio  St.  73. 

Petition  to  restrain  a  high  board  fence  which  the  defendant 
was  building  on  his  land. 

The  demurrer  was  overruled. 

The  plaintiff  owned  and  occupied  certain  premises  which  he 
used  as  a  boarding  house ;  defendant  owned  and  occupied  premises 
adjoining  those  of  the  plaintiff;  between  the  two  houses  is  a  drive- 
way and  an  open  space  about  twenty  feet  wide.  The  plaintiff'  and 
defendant  had  a  litigation  on  account  of  the  defendant  having  at- 
tached a  shed  roof  to  the  plaintiff's  building  without  her  consent. 
After  the  trial  of  the  litigation  the  defendant  removed  the  shed 
roof  and  built  up  against  the  plaintiff's  house  a  tight  board  fence 
eighty-six  feet  long,  reaching  from  two  feet  from  the  ground  up  to 
the  eaves  of  the  plaintiff's  building,  completely  covering  up  the  win- 
dows of  all  the  rooms  on  that  side  of  the  house  and  shutting  out  the 
light  and  air  from  them.  The  defendant  nailed  to  a  board  on  this 
fence  a  shed  roof  forty  feet  long,  under  which  he  piled  lumber.  The 
structure  was  erected  from  motives  of  unmixed  malice  toward  said 
plaintiff  and  for  no  useful  or  ornamental  purpose  except  said  shed 

interferes  with  the  passing  of  travellers  thereon.  Graves  v.  Shattuck,  35  N.  H. 
257  (1857),  and  Sikes  v.  Manchester,  59  Iowa  65  (1882),  doubting  whether 
farmer's  wagons  left  in  the  street  and  occupying  half  thereof  while  the 
horses  were  being  fed  would  be  an  unlawful  obstruction,  since  "it  would 
be  well  for  the  towns  and  villages  of  the  state  to  have  their  streets  freely 
used  for  such  purposes  by  farmers  who  are  trading  there."  That  the  partic- 
ular use  is  one  to  which  they  are  ordinarily  put  in  that  and  similar  places  is 
regarded  as  tending  to  show  it  to  be  reasonable,  Graves  v.  Shattuck,  35  N.  H. 
2S7  {\B,S7),  Sikes  V.  J\Ianchester,S9lov;ztS  {l^^2). 

As  to  the  use  of  vehicles,  such  as  automobiles,  especially  heavy  omni- 
buses, difficult  to  control  and  likely  to  skid  in  wet  weather,  compare  Wing  v. 
London  General  Omnibus  Co.,  L.  R.  1909,  2  K.  B.  652,  pp.  666-667,  and 
Parker  v.  London  General  Omnibus  Co..  26  T.  L.  R.  18  (1909),  with  Philpot 
V.  Fifth  Ave.  Coach  Co.,  142  App.  Div.  811  (N.  Y.  1911),  and  Walton  v.  Van- 
guard Co.,  25  T.  L.  R.  14  (1908). 


LETTS    v.    KESSLER.  1291 

roof  and  the  wall  below  the  shed  roof,  which  may  serve  some  use- 
ful purpose  of  the  defendant  in  the  use  of  his  property,  by  protect- 
ing his  lumber  pile  thereunder. 

Decree:  that  defendant  be  enjoined  from  proceeding  further 
with  the  erection  of  the  fence ;  and  that  the  defendant  take  down 
all  of  said  fence  and  scantling  projecting  above  the  roof  of  said 
shed,  and  all  the  remainder  of  said  fence  outside  of  and  beyond 
said  shed. 

BuRKET,  J.  The  only  question  in  this  case  arises  upon  the 
following  findings  of  fact  by  the  circuit  court: 

"Said  structure  was  erected  upon  the  land  of  the  defendant  and 
belonged  to  him.  The  structure  was  erected  by  said  defendant 
from  motives  of  unmixed  malice  toward  said  plaintiff,  and  for  no 
useful  or  ornamental  purposes  of  the  property  of  said  defendant." 

It  is  not  claimed  that  the  person  of  the  plaintiff  was  interfered 
with  in  this  case,  so  that  we  have  for  consideration  only  the  rights 
of  property. 

The  fence  complained  of  is  upon  the  land  of  the  defendant  and 
belongs  to  him.  Plaintiff  fails  to  aver,  and  the  court  fails  to  find, 
that  she  has  any  right  to,  or  upon,  the  lot  of  defendant  below  by 
contract,  statute,  or  any  other  way  known  to  the  law  for  acquiring 
a  right  to,  in,  or  upon  lands,  unless  such  right  may  be  acquired  by, 
and  transferred  to  her,  by  means  of  the  aforesaid  "motives  of  un- 
mixed malice."  This  is  a  manner  of  acquiring  on  the  one  hand,  and 
of  transferring  on  the  other,  a  right  to  property  unknown  to  the  law. 

But  it  is  urged  in  her  behalf,  that  even  if  she  had  no  right 
of  property,  and  even  if  he  was  the  owner  of  the  lot,  that  he  could 
not  use  his  own  land  for  the  purpose  of  erecting  structures  thereon 
which  subserve  no  useful  or  ornamental  purpose,  and  are  erected 
through  motives  of  unmixed  malice  toward  his  adjoining  neighbor. 

It  is  and  must  be  conceded  that  he  might,  by  erecting  a  build- 
ing on  his  lot,  shut  off  her  light  and  air  to  exactly  the  same  ex- 
tent as  is  done  by  this  fence,  and  that  in  such  a  case  she  would  be 
without  right  and  without  remedy,  even  though  done  with  the  same 
feelings  of  malice  as  induced  him  to  erect  the  fence ;  thus  making 
his  acts  lawful  when  the  malice  is  seasoned  with  profit,  or  some 
show  of  profit  to  himself,  and  unlawful  when  his  malice  is  unmixed 
with  profit,  the  injury  or  inconvenience  to  her,  meanwhile,  remain- 
ing the  same  in  both  cases.  If  through  feelings  of  malice  he  desires 
to  shut  the  light  and  air  from  her  windows,  it  is  nothing  to  her 
whether  he  makes  a  profit  or  loss  thereby.  Her  injury  is  no_  greater 
and  no  less  in  the  one  case  than  in  the  other.  As  to  her  it  is  the 
effect  of  the  act,  and  not  the  motive. 

In  effect  he  has  the  right  to  shut  off  the  light  and  air  from  her 
windows  by  a  building- on  his  own  premises,  and  she  is  not  in  effect 
concerned  in  the  means  by  which  such  effect  is  produced,  whether 
by  a  building  or  other  structure :  nor  is  she  concerned  as  to  the  mo- 
tive, nor  as  to  whether  he  makes  or  loses  by  the  operation.  In  the 
one  case  she  might  have  a  strong  suspicion  of  his  malice,  while  in 
the  othef  such  suspicion  would  be  ripened  into  a  certainty.     But 


1292  LETTS    f.    KESSLER. 

this  is  nothing  to  her  as  afifecting  a  property  right.  As  long  as  he 
keeps  on  his  own  property,  and  causes  an  effect  on  her  property 
which  he  has  a  right  to  cause,  she  has  no  legal  right  to  complain 
as  to  the  manner  in  which  the  effect  is  produced,  and  to  permit  her 
to  do  so,  would  not  be  enforcing  a  right  of  property,  but  a  rule  of 
morals.  It  would  be  controlling  and  directing  his  moral  conduct 
by  a  suit  in  equity,  by  an  injunction. 

To  permit  a  man  to  cause,  a  certain  injurious  effect  upon  the 
premises  of  his  neighbor  by  the  erection  of  a  structure  on  his  own 
premises  if  such  structure  is  beneficial  or  ornamental,  and  to  pro- 
hibit him  from  causing  the  same  effect  in  case  the  structure  is  neither 
beneficial  nor  ornamental,  but  erected  from  motives  of  pure  malice, 
is  not  protecting  a  legal  right,  but  is  controlling  his  moral  conduct. 
In  this  state  a  man  is  free  to  direct  his  moral  conduct  as  he  pleases, 
in  so  far  as  he  is  not  restrained  by  statute. 

But  it  is  said  that  such  acts  are  offensive  to  the  principles  of 
equity.  Not  so.  There  is  no  conflict  between  law  and  equity  in 
our  practice,  and  what  a  man  may  lawfully  do  cannot  be  prohibited 
as  inequitable.  It  may  be  immoral,  and  shock  our  notions  of  fair- 
ness, but  what  the  law  permits,  equity  tolerates.  It  would  be  much 
more  inequitable  and  intolerable  to  allow  a  man's  neighbors  to 
question  his  motives  every  time  that  he  should  undertake  to  erect 
a  structure  upon  his  own  premises,  and  drag  him  before  a  court  of 
equity  to  ascertain  whether  he  is  about  to  erect  the  structure  for 
ornament  or  profit,  or  through  motives  of  unmixed  malice. 

The  case  is  not  like  annoying  a  neighbor  by  means  of  causing 
smoke,  gas,  noisome  smells,  or  noises  to  enter  his  premises,  there- 
by causing  injury.  In  such  cases  something  is  produced  on  one's 
own  premises  and  conveyed  to  the  premises  of  another ;  but  in  this 
case  nothing  is  sent,  but  the  air  and  light  are  withheld.  A  man 
may  be  compelled  to  keep  his  gas,  smoke,  odors  and  noise  at  home, 
but  he  cannot  be  compelled  to  send  his  air  and  light  abroad.  Mullen 
V.  Strieker,  19  Ohio  St.  135. 

If  smoke,  gas,  offensive  odors,  or  noise  pass  from  one's  own 
premises  to  or  upon  the  premises  of  another  to  his  injury,  an  ac- 
tion will  lie  therefor,  even  though  the  smoke,  gas,  odor  or  noise 
should  be  caused  by  the  lawful  business  operations  of  defendant 
and  with  the  best  of  motives.     Broom's  Legal  Maxims,  372. 

But  it  is  strongly  urged  by  counsel  for  defendant  in  error,  that 
the  maxim,  "Enjoy  your  own  property  in  such  a  manner  as  not  to 
injure  that  of  another  person,"  applies  in  such  cases  as  this,  and 
that  as  it  must  be  conceded  that  the  fence  in  question  is  an  injury 
to  the  property  of  defendant  in  error,  that  his  acts  are  in  conflict 
with  the  above  maxim. 

At  first  blush  this  would  seem  to  be  so,  but  a  careful  con- 
sideration shows  the  contrary.  The  maxim  is  a  very  old  one,  and 
states  the  law  too  broadly.  In  this  case,  for  instance,  it  is  con- 
ceded that  the  plaintiff  in  error  had  the  right  to  enjoy  his  property 
by  erecting  a  house  so  as  to  do  the  same  injury  which  was  done  by 
the  fence,  and  that  while  that  would  be  an  injury  to  the  property 


BARGER   r.    BARRIXGER.  1 293 

of  defendant  in  error,  she  would  be  without  remedy,  and  his  act 
in  erecting  such  house  would  not  be  regarded  as  violating  the  maxim. 

In  Jeffries  v.  IVilliams,  5  Exch.  797,  it  was  claimed,  and  in 
Railroad  Company  v.  Bingham,  29  Ohio  St.  369,  it  was  held,  that 
the  true  and  legal  meaning  of  the  maxim  is,  "So  use  your  own  prop- 
erty as  not  to  injure  the  rights  of  another."  Boynton,  J.,  in  that  case 
says :  "Where  no  right  lias  been  invaded,  although  one  may  have 
injured  another,  no  liability  has  been  incurred.  Any  other  rule 
would  be  manifestly  wrong."  The  maxim  should  be  limited  to 
causing  injury  to  the  rights  of  another,  rather  than  to  the  property 
of  another,  because  for  an  injury  to  the  rights  of  another  there  is 
always  a  remedy,  but  there  may  be  injuries  to  the  property  of  an- 
other for  which  there  is  no  remedy,  as  in  draining  a  spring  or  well, 
or  cutting  off  light  and  air  or  a  pleasant  view  by  the  erection  of 
buildings,  and  many  other  cases  which  may  be  cited. 

Thus  limiting  the  maxim  to  the  rights  of  the  defendant  in  er- 
ror, it  is  plain  that  the  acts  of  plaintiff  in  error  in  the  use  which  he 
made  of  his  property  did  not  injure  any  legal  right  of  hers,  and  that 
therefore  what  he  did,  was  not  in  violation  of  such  maxim. 

Judgment  reversed.^ 


BARGER  V.  BARRINGER. 

Supreme  Court  of  North  Carolina,  1909.  .151  N.  Car.  433. 

Brown,  J.  The  plaintiff's  evidence  in  this  case  tends  to  prove 
that  the  premises  of  plaintiff  and  defendant  adjoin,  and  that  they 
mutually  constructed  a  4-foot  wire  fence  on  the  division  line ;  that 
thereafter  the  plaintiff,  as  chief  of  police  of  the  town  of  West 
Hickory,  was  compelled  by  his  duty  to  report  the  filthy  condition  of 
defendant's  stables ;  and  from  pure,  unadulterated  vengeance  and 
malice  the  defendant  erected  a  very  rude,  unsightly  board  fence,  8 
feet,  6  inches  high  on  his  side  of  the  division  fence,  and  within  4 
feet  of  plaintiff's  windows,  which  cuts  off  plaintiff's  view,  air  and 
light;  so  much  so  that j)laintiff  testifies  he  cannot  see  how  to  shave 
by  sunlight  since  the  fence  was  built.  His  Honor's  ruling  was  based 
upon  what  we  admit  to  be  the  generally  received  view  of  the  com- 
mon law  of  England  ;  that  the  erection  of  a  fence  upon  one's  own 
land  is  not  actionable  injury  to  one's  neighbor,  although  he  may  be 


^Accord:  Lord  Penzance  in  Capitol  and  Counties  Bank  v.  Henty,  L.  R. 
7  A.  C.  741  (1882),  p.  766,  semblc:  Ciller  v.  West,  162  Ind.  17  (1903); 
Bordeaux  v.  Greene,  22  Mont.  254  (1898);  Brostrom  v.  Lauppe,  179  Mass. 
315  (1901);  Mahan  v.  Brown,  13  Wend.  261  (N.  Y.  1835),  where,  however, 
it  was  assumed  that  the  plaintiff  might  acquire  an  easement  for  light  and  air 
over  the  defendant's  adjoining  land  unless  the  latter  shut  off  his  windows; 
Pickard  v'.  Collins,  23  Barb.  444  (N.  Y.  1856)  ;  Lew  v.  Brothers,  4  Misc.  48 
(N.  Y.  1893)  ;  Koblegard  v.  Hale,  60  W.  Va.  37  (1906)  :  Metzqer  v.  Hoch- 
rein,  107  Wis.  267  (1900),  and  see  Laperc  v.  Ltickey,  23  Kans.  534  (1880): 
TriMeit  v.  Jackson,  5  Kans.  App.  777  (1897);  Guest  v.  Reynolds,  68  Til.  478 
(1873);  Honsel  v.  Comnt,  12  111.  App.  259  (1882),  and  compare  Shell  v. 
Kcmmerer,  13  Phila.  502   (Pa.  1877). 


1294  BARGF.R   I'.    r.ARRIXGER. 

deprived  of  light  and  air  thereby,  and  the  act  may  be  dictated  by 
motives  of  ill-will.  Counsel  for  plaintiff  does  not  deny  the  general 
proposition  that  one  has  a  right  to  improve  his  property  as  he  sees 
fit,  and  that  resultant  injury  would  be  damnum  absque  injxiria. 
But  it  is  contended  that  if  one  in  the  use  of  his  property  is  ac- 
tuated solely  by  a  malicious  purpose  to  injure  his  neighbor,  with 
no  benefit  accruing  to  himself,  he  will  not  be  permitted  to  use  his 
property  for  such  an  unworthy  purpose.  It  must  be  admitted  that 
this  proposition  embodies  good  morals,  and  we  think  it  is  supported 
by  recognized  authority  and  well-considered  precedents.  We  are 
therefore  disposed  to  follow  those  courts  w^iich,  in  this  respect, 
teach  that  the  principle  of  the  common  law,  above  stated,  should 
not  be  held  to  authorize  the  creation  and  maintenance  of  a  nuisance 
for  the  sole  purpose  of  gratifying  a  most  ignoble  passion.  There 
are  respectable  authorities  in  this  country  which  support  the  view 
that  malice  makes  that  actionable  which  would  otherwise  not  be  so, 
and  the  doctrine  has  been  held  to  be  well  founded,  both  in  law 
and  morals,  that  "a  fence  erected  maliciously,  and  with  no  other 
purpose  than  to  shut  out  the  light  and  air  from  a  neighbor's  win- 
dow, is  a  nuisance."  12  Am.  &  Eng.  Enc.  Law,  2d  ed.  p.  1058,  and 
cases  cited  in  note ;  i  Cyc.  Law  &  Proc.  p.  789. 

This  question  came  before  the  Supreme  Court  of  Michigan  in 
1888,  and  the  court  was  equally  divided.  An  elaborate  and  well- 
reasoned  opinion  was  delivered  by  Justice  Morse  {Burke  v.  Smith, 
69  Mich.  383),  from  which  we  cannot  do  better  than  quote  at 
length:  The  learned  justice  says:  It  is  argued  "that,  while  it  is 
true  that  when  one  pursues  a  strictly  legal  right,  his  motives  are  im- 
material, yet  no  man  has  a  right  to  build  and  maintain  an  entirely 
useless  structure  for  the  sole  purpose  of  injuring  his  neighbor. 
The  argument  has  force,  and  appears  irresistible  in  the  light  of  the 
moral  law  that  ought  to  govern  all  human  action.  And  the  civil  law, 
coming  close  to  the  moral  law,  declares  that  'he  who,  in  making  a 
new  work  upon  his  own  estate,  uses  his  right  without  trespassing, 
either  against  any  law,  custom,  title,  or  possession  which  may 
subject  him  to  any  service  toward  his  neighbors,  is  not  answerable 
for  the  damages  which  they  may  chance  to  -sustain  thereby,  unless 
it  be  that  he  made  that  change  merely  with  a  view  to  hurt  others, 
without  advantage  to  himself.'  Thus  the  civil  law  recognizes  the 
moral  law,  and  does  not  permit  the  owner  of  land  to  do  an  act  upon 
his  own  premises  for  the  express  purpose  of  injuring  his  neighbor, 
where  the  act  brings  no  profit  or  advantage  to  himself.  The  law  fur- 
nishes redress,  because  the  injury  is  malicious  and  unjustifiable. 
The  moral  law  imposes  upon  every  man  the  duty  of  doing  unto 
others  as  he  would  that  they  should  do  unto  him ;  and  the  com- 
mon law  ought  to,  and  in  my  opinion  does,  require  him  to  so  use  his 
own  privileges  and  property  as  not  to  injure  the  rights  of  others 
maliciously  and  without  necessity.  It  is  true  that  he  can  use  his 
own  property,  if  for  his  own  benefit  or  advantage,  in  many  cases, 
to  the  injury  of  his  neighbor;  and  such  neighbor  has  no  redress, 
because  the  owner  of  the  property  is  exercising  a  legal  right  which 


BARGER   V.    BARRIXGER.  I295 

infringes  on  no  legal  right  of  the  other.  Therefore,  and  under 
this  principle,  the  defendant  might  have  erected  a  building  for  use- 
ful or  ornamental  purposes,  and  shut  out  the  light  and  air  from 
complainant's  windows,  but  when  he  erected  these  'screens'  or 
'obscurers'  for  no  useful  pr  ornamental  purpose,  but  out  of  pure 
malice  against  his  neighbor,  it  seems  to  me  a  different  principle  must 
prevail.  I  do  not  think  the  common  law  permits  a  man  to  be  de- 
prived of  water,  air,  or  light  for  the  mere  gratification  of  malice. 
No  one  has  an  exclusive  property  in  any  of  these  elements,  except 
as  the  same  may  exist  or  be  confined  entirely  on  his  own  premises."^ 
The  same  principle  has  been  applied  by  other  courts  where  the 
owner  of  land  upon  which  there  is  an  underground  spring  of  water 
attempts  to  cut  off  the  underground  flow  from  his  neighbor.  It 
is  held  generally  that  any  person  might  rightfully  appropriate  the 
whole  of  the  water  from  the  spring  on  his  own  land,  or  of  water 
which  percolates  through  it,  without  forming  a  well-defined  stream. 
Hale,  Torts,  p.  425 ;  Roath  v.  Driscoll,  20  Conn.  533.  Nevertheless, 
there  are  able  courts  which  hold  that  if  such  appropriation  is  mali- 
ciously done  to  injure  a  neighbor,  it  is  actionable.  Hale,  p.  426; 
Wheatley  v.  Baugh,  25  Pa.  St.  528,  and  cases  cited.  We  fail  to  see 
why  this  principle  should  not  apply  with  equal  force  to  light  and  air, 
especially  in  a  state  where  no  prescriptive  rights  can  be  acquired  in 
windows.  Justice  Morse  in  his  admirable  opinion  already  cited, 
asks  this  pertinent  question :  "If  a  man  has  no  right  to  dig  a  hole 
upon  his  premises,  not  for  any  benefit  to  himself  or  his  premises, 
but  for  the  express  purpose  of  destroying  his  neighbor's  spring, 
why  can  he' be  permitted  to  shut  out  air  and  light  from  his  neigh- 
bor's windows  maliciously,  and  without  profit  or  benefit  to  him- 
self?" 

Light  and. air  are  as  much  a  necessity  as  water,  and  all  are  the 
common  heritage  of  mankind.  While,  for  legitimate  purposes,  a 
person's  rights  in  them  may  sometimes  be  curtailed  without  con- 
sulting his  comfort  or  convenience,  the  common  welfare  of  all  for- 
bids that  this  should  be  needlessly  permitted  in  order  to  gratify  one 
of  the  basest  and  most  degrading  passions  that  sometimes  takes 
possession  of  the  human  heart.  The  law  would  be  untrue  to  its 
soundest  principles  if  it  declared  that  the  wanton  and  needless  in- 
fliction of  injury  can  ever  be  a  legal  right.  Instead  of  saying  that 
malice  will  not  make  a  lawful  act  unlawful,  it  is  much  more  con- 
sistent with  elementary  principles  of  right  and  wrong  to  say  that 
wilful  and  wanton   damage  done  to  another  is  actionable  unless 

^"This  opinion  was  approved  by  a  unanimous  court,  the  personnel  of 
which  had  been  changed  in  1890,  in  the  case  of  Flaherty  v.  Moran,  81  Mich. 
52,  in  which  it  was  held  that  a  fence  erected  maliciously,  and  with  no  other 
purpose  than  to  shut  out  light  and  air  from  a  neighbor's  windows,  is  a 
nuisance.  This  ruling  was  again  unanimously  approved  in  1893  by  the 
Michigan  court,  although  its  membership  had  again  been  changed,  in  Kirk- 
wood  v.  Finegan,  95  Mich.  543,  and  again  in  Kuaniak  v.  Kozminski,  107 
Mich.  444.  In  1896  the  same  court,  again  differently  constituted,  unani- 
mously followed  and  approved  those  precedents.  Peck  v.  Roe,  110  Mich.  52; 
Sankcy  v.  St.  Marv's  Female  Academy,  8  Mont.  267;  Havens  v.  Klein,  49 
How.  Pr.  95  (N.  Y.)." 


1296  BARGRR 


BARRINGER. 


there  is  some  just  or  legal  cause  or  excuse  for  it.  An  eminent 
English  judge  has  declared  this  to  be  a  general  rule  of  English  law 
in  these  words :  "At  common  law  there  was  a  cause  of  action 
whenever  one  person  did  damage  to  another  wilfully  and  intention- 
ally, and  without  just  excuse."  Lord  Justice  Brown,  in  Skinner  v. 
Shezv,  (1893)  I  Ch.  422.- 

In  the  administration  of  the  criminal  law,  the  motive  with 
which  an  act  is  committed  has  a  marked  effect  upon  the  guilt  of  the 
accused,  and  in  determining  the  degrees  of  crime.  Why  not,  for 
the  same  reasons,  let  it  become  a  potent  element  in  determining 
civil  rights,  so  as  to  deter  malicious  persons  from  the  infliction  of 
wanton  injury  upon  their  fellow  men?  This  involves  no  harm- 
ful restriction  upon  the  right  of  ownership  of  property.  There  are 
many  limitations  placed  by  the  common  law  upon  such  rights,  and  we 
see  no  difficulty  in  principle  in  limiting  an  owner's  rights  so  far 
that  he  shall  not  be  permitted  to  use  his  land  in  a  particular  way 
with  no  other  purpose  than  to  damage  his  neighbor.  This  has  been 
done  without  injurious  effect,  in  the  matter  of  so-called  "spite 
fences,"  by  some  of  the  most  enlightened  states  of  this  Union,  which 
have  remedied  by  legislation  the  errors  of  the  courts  in  failing  to 
recognize  this  "fundamental  doctrine  of  the  rights  of  man,"  when 
dealing  with  this  kind  of  injury.  In  cases  brought  under  such  stat- 
utes, the  courts  have  declared  that  malevolence  must  be  the  dom- 
inant motive,  without  which  the  fence  would  not  have  been  built, 
in  order  to  bring  the  case  within  the  statute.  12  Am.  &  Eng.  Enc. 
Law,  p.  1058,  and  cases  cited;  Lord  v.  Langdon,  91  Me.  221; 
Rideout  v.  Knox,  148  Mass.  368;  Smith  v.  Morse,  148  Mass.  407; 
Hunt  V.  Coggin,  66  N.  H.  140.^  If  the  right  to  use  one's  property, 
solely  for  malicious  purposes,  in  a  manner  which  would  be  lawful 
for  other  ends,  is  a  legal  right,  and  an  incident  to  the  legal  exer- 


°"Mr.  Justice  Holmes,  delivering  the  opinion  of  the  Supreme  Court 
of  the  United  States,  stated  the  same  rule  more  fully:  'It  has  been  consid- 
ered that  prima  facie  the  intentional  infliction  of  temporal  damage  is  a  cause 
of  action,  which,  as  a  matter  of  substantive  law,  whatever  may  be  the  form 
of  pleading,  requires  a  justification,  if  the  defendant  is  to_  escape.  *  *  » 
If  this  is  the  correct  mode  of  approach,  it  is  obvious  that  justifications  may 
vary  in  extent  according  to  the  principles  of  policy  upon  which  they  are 
founded ;  and  that  while  some,  for  instance,  at  common  law,  those  affecting 
the  use  of  land,  are  absolute,  *  *  *  others  may  depend  upon  the  end 
for  which  the  act  is  done.'  Aiketts  v.  IVisconsin,  195  U.  S.  194;  Pollock, 
Torts,  7th  ed.  319.    See  also,  22  Law  Quarterly  Rev.  (1906)  p.  118." 

^The  statutes  of  California,  Maine,  Massachusetts  and  New  Hampshire 
declare  "fences  or  similar  structures"  exceeding  a.  certain  height  "enclosed 
or  maintained  with  the  malicious  purpose  of  annoying  the  owner  or  occu- 
pant of  adjacent  premises"  to  be  private  nuisances.  Such  statutes  do  not 
apply  to  buildings  other  than  those  on  or  near  the  division  line  between  the 
two  premises,  Ingwersen  V.  Barry,  118  Cal.  342  (1897)  ;  Brostrom  v.  Lauppe, 
179  Mass.  315  (1901).  In  Connecticut  and  Washington  it  is  provided  that 
injunctions  may  be  granted  to  retain  the  "m.alicious  erection  or  maintenance 
of  any  structure  intended  to  spite,  injure  or  annoy  an  adjoining  proprietor", 
GaUagher  v.  Dodge,  48  Conn.  387  (1880);  Karasck  v.  Peier,  22  Wash.  419 
(1900).  While  in  Vermont,  the  erection  or  maintenance  of  "an  unnecessary 
fence  or  other  structure"  for  such  purpose  is  forbidden  imder  penalty  of  a 
fine,  and  the  selectmen  are  empowered  to  remove  it  after  notice  to  the  evictor 
and  his  failure  to  remove  it  himself.  Holmes  v.  Fuller,  68  Vt.  207   (i'^6). 


BARGER    V.    liARRIXGER,  I297 

cise  of  such  property  which  the  courts  ought  not  and  cannot  right- 
fully deny,  how  can  such  right  be  taken  away  by  legislation,  as 
legislatures,  no  more  than  courts,  have  power  of  confiscation?  Yet 
these  statutes  have  been  upheld  by  the  courts  and  approved  by 
the  people  of  those  states  wherein  they  have  been  enacted.  The 
truth  is  that  the  right  to  use  one's  property  for  the  sole  purpose 
of  injuring  others  is  not  one  of  the  immediate  and  indestructible 
rights  of  ownership,  and  such  acts  may  and  ought  to  be  prohibited 
by  courts  without  the  aid  of  legislation.* 

We  are  aware  that  this  court  has  recognized  the  general  prin- 
ciple that  malice,  disconnected  with  the  infringement  of  a  legal 
right,  is  not  actionable,  as  in  Richardson  v.  Wilmington  &  IV.  R. 
Co.,  126  N.  Car.  lOO,  where  the  master  discharged  his  servant, 
there  being  no  fixed  term  of  employment.  It  was  properly  held, 
the  present  .chief  justice  speaking  for  the  court,  that  as  either  party 
had  the  legal  right  to  terminate  the  service  at  will,  the  motive 
could  not  be  inquired  into.  We  also  adhere  to  the  law  as  de- 
clared in  Lindsay  v.  First  Nat.  Bank,  115  N.  Car.  553,  that  in  this 
country  the  easement  of  light  and  air  cannot  be  acquired  by  prescrip- 
tion,^ upon  which  ground  this  court  refused  to  enjoin  the  erection  of 
a  building,  one  wall  of  which  excluded  the  light  from  plaintiff's 
l)hotograph  gallery.  There  was  no  allegation  that  the  obstruction 
was  useless  and  erected  for  malicious  purposes  solely.  The  differ- 
ence between  these  cases  and  this  is  apparent  upon  even  a  cursory 
reading. 

We  are  not  aware  that  this  court  has  ever  extended  the  rights 
of  ownership  in  property  so  far  as  to  authorize  an  owner  to  use  it 
for  the  express  purpose  of  creating  a  nuisance  and  no  other;  and, 
if  it  had,  in  the  light  of  further  investigation,  we  should  feel  impelled 
to  hold  the  case  not  well  decided.  There  are  many  annoyances 
arising  from  legitimate  improvements  and  businesses  which  those 
living  near  must  endure,  but  no  one  should  be  compelled  by  law  to 
submit  to  a  nuisance  created  and  continued  for  no  useful  end, 
but  solely  to" inflict  upon  him  humiliation,  as  well  as  physical  pain. 
The  ancient  maxim  of  the  common  law,  Sic  ufere  tito  ut  alien  11  m  non 
lacdas,  is  not  founded  in  any  human  statute,  but  in  that  sentiment 
expressed  by  Him  who  taught  good  will  toward  men,  and  said, 
"Love  thy  neighbor  as  thyself."  Freely  translated,  it  enjoins  that 
every  person,  in  the  use  of  his  own  property,  should  avoid  injury 
to  his  neighbor  as  much  as  possible.  No  one  ought  to  have  the  legal 
right  to  make  a  malicious  use  of  his  property  for  no  benefit  to  him- 

*  See  Horan  v.  Byrnes,  72  N.  H.  93  (1903),  accord.  Such  acts  have  been 
Iield  constitutional  in  Rideoiit  v.  Knox,  148  Mass.  368  (1889),  and  Karasek 
V.  Peier,  22  Mont.  419  (1900),  though  it  was  intimated  that  an  act  prohib- 
iting an  owner  erecting  a  store  or  house  or  other  useful  structure,  though 
its  erection  was  inspired  by  a  desire  to  injure  an  adjoining  proprietor;  sec 
Jones  v.  WUliams,  56  Wash.  588  (1910).  The  reasoning  in  Huber  v.  Mcrkcl, 
117  Wis.  355  (1903),  would  require  that  such  statutes  should  be  held  uncon- 
stitutional in  Wisconsin. 

'-Accord:  Guest  v.  Reynolds,  68  111.  478  (1873);  Keats  v.  Hugo,  115 
Mass.  204  (1880),  semble,  and  cases  cited  therein:  Rrnn\son's  Appeal,  94 
Pa.  147  (1880)  ;  Parker  v.  Foote,  19  Wend.  309  (N.  Y.  1838). 


1298  BARGER 


BARRINGER. 


self,  but  merely  to  injure  his  fellow  man.  To  hold  otherwise  makes 
the  law  an  engine  of  oppression  with  which  to  destroy  the  peace  and 
comfort  of  a  neighbor,  as  well  as  to  damage  his  property  for  no  use- 
ful purpose,  but  solely  to  gratify  a  wicked  and  debasing  pa^ion.  The 
doctrine  of  private  nuisances  is  founded  upon  this  humane  and  ven- 
erable maxim  of  the  law.  If  it  can  be-  successfully  invoked  to 
prevent  the  keeping  of  stables  and  hogpens  so  near  one's  neighbor 
as  to  cause  discomfort,  why  cannot  he  whom  it  is  sought  to  needlessly 
and  maliciously  deprive  of  air  and  sunlight  also  seek  the  aegis  of 
its  protection?  The  right  thus  to  injure  one's  neighbor  with  impu- 
nity cannot  long  continue  to  exist  anywhere  in  an  enlightened  coun- 
try where  God  is  acknowledged  and  the  Golden  Rule  is  taught.  On 
this  subject,  if  need  be,  we  will  do  better  to  follow  the  pandects  of 
the  heathen  Roman,  whose  jurists  have  inculcated  a  doctrine  more 
consistent  with  the  teachings  of  Him  whom  they  permitted  to  be 
crucified,  than  to  be  governed  by  the  principles  of  the  common  law 
as  expounded  by  some  Christian  courts  and  text  writers. 

The  judgment  of  nonsuit  is  set  aside,  and  the  cause  remanded, 
to  be  proceeded  with  in  accordance  with  the  principles  laid  down 
in  this  opinion.^ 

New  trial. 

Hoke,  J.,  dissenting.  We  are  all,  I  trust  striving,  at  times 
somewhat  blindly,  to  attain  to  the  perfect  righteousness  of  the 
great  Teacher  as  well  as  Saviour  of  men,  but  in  the  present  stage 
of  our  development,  and  with  our  limited,  human  ken,  it  has  been 
found  best  to  confine  litigation  in  our  civil  courts  to  the  enforce- 
ment of  rights,  and  the  redress  of  wrongs  growing  out  of  an  inva- 
sion of  those  rights,  done  or  threatened,  and  not  allow  causes  of 
action  to  be  based  upon  motive  alone.  For  here  we  enter  upon  the 
domain  of  taste  and  temperament,  involving  questions  entirely  too 
complex,  varied,  and  at  times  fanciful  for  satisfactory  inquiry  and 
determination  by  municipal  courts.  In  a  case  so  near  the  border 
line  as  to  divide  this  court  on  a  fundamental  question  as  to  rights  of 
property,  it  is  well  to  recur  to  the  facts.  The  plaintiff,  a  chief  of 
police,  and  owner  of  a  house  and  lot,  on  complaint  made,  has  caused 
the  defendant  to  remove  his  stable  from  an  adjoining  piece  of 
property.    The  defendant,  smarting  under  a.  sense  of  defeat,  makes 


^Accord:  Smith  v.  Speed,  11  Okla.  95  (1901),  proceeding  to  punish 
as  contempt  the  erection  of  a  "spite  fence"  restrained  by  a  District  Court; 
and  see  the  charge  of  the  trial  court  in  Haver  stick  v.  Sipe,  ZZ  Pa.  368  (1859). 
In  Mcts  V.  Tierney,  13  N.  Me.x.  363  (1906),  the  court  refused  to  express  any 
opinion  on  the  point,  holding  that  the  fence  or  screen  in  question  was  erected 
for  a  legitimate  purpose,  to  protect  the  privacy  of  his  premises,  as  to  this  see 
accord:  McCorkle  v.  DriskcU,  60  S.  W.  172  (Tenn.  1900)  ;  Shell  v.  Kemmerer, 
13  Phila.  502  (Pa.  1879)  ;  Haverstick  v.  Sipe,  2>i  Pa.  368  (1859),  semble,  and 
compare  Burke  v.  Smith  with  Flaherty  v.  Moran,  81  Mich.  52.  For  the  law 
of  France,  Germany  and  Switzerland  and  the  civil  law  on  the  subject,  see 
"Motive  as  an  Element  in  Torts  in  the  Common  and  in  the  Civil  Law"  by 
F.  P.  Walton,  Esq.,  of  McGill  University.  Montreal,  22  Harv.  L.  R.  501 
(1909),  a  very  valuable  discussion  on  the  whole  subject  indicted  in  the  title 
of  the  article,  especially  p.  502,  citing  Doerr  v.  Keller,  Court  of  Colmar, 
Dalloz,  1856,  2,  9;  Sirey,  1904,  2,  217. 


HORAN    V.    BYRNES.  1299 

some  hasty  and  ill-considered  expressions,  erects  a  fence  on  his  own 
land,  and  in  the  protection  of  his  own  property.  He  is  now  brought 
into  court  on  the  charge  that  the  fence  has  been  constructed  from 
malicious  motives  ;  that  it  is  too  high  ;  the  planks  are  rough  and 
undressed;  and  the  house  of  plaintiff,  presumably  one  room  of  it, 
has  been  rendered  so  dark  that  he  cannot  see  how  to  shave.  If 
plaintiff  can  succeed  in  this,  the  next  grievance  wiii  very  likely  be 
found  in  the  shape  of  the  roof  or  the  color  of  the  paint,  and  the  de- 
fendant, who  had  supposed  that  he  was  the  owner  of  a  piece  of 
property,  no  doubt  descended  to  him  from  his  fathers,  will  find 
that  in  the  evolution  of  things  modern  he  is  only  an  occupant, 
holding  subject  to  the  capricious  whims  of  some  supersensitive  and 
overly  aesthetic  but  influential  neighbor. 

I  am  of  opinion  that  no  cause  of  action  has  been  stated  in  the 
complaint  or  in  the  evidence,  and  that  the  judgment  of  nonsuit 
should  be  sustained. 

Manning,  J.,  concurs  in  the  dissenting  opinion. 


HORAN  V.  BYRNES. 
Supreme  Court  of  New  Hampshire,  1903.    72  N.  H.  93. 

Case,  under  sections  28  and  29,  chapter  143,  Public  Statutes, 
for  maintaining  a  structure  in  the  nature  of  a  fence,  in  violation  of 
the  statute.  ■ 

Upon  the  trial,  defendant  moved  for  a  nonsuit,  on  the  ground 
that  the  statute  is  unconstitutional.  The  motion  was  denied,  and 
defendant  excepted. 

Parsons,  C.  J.  The  act  forbids  the  use  by  one  landowner  of 
his  land  for  the  unnecessary  erection  of  a  fence  exceeding  five  feet 
in  height,  when  the  purpose  of  such  unnecessary  height  is  the  annoy- 
ance of  the  adjoining  owner  or  occupant,  if  such  unnecessary  height 
injures  the  adjoining  owner  in  his  comfort  or  the  enjoyment  of  his 
estate.  The  claim  of  the  defendant  in  support  of  his  motion  for  a 
nonsuit,  that  the  statute  is  unconstitutional,  raises  the  question 
whether  the  statutory  prohibition  is  an  interference  with  the  defend- 
ant's "natural,  essential,  and  inherent"  right  of  "acquiring,  pos- 
sessing, and  protecting  property,"  or  deprives  him  of  that  protection 
in  its  enjoyment,  which  is  the  right  of  "every  member  of  the  com- 
munity."   Bill  of  Rights,  arts.  2,  12. 

"While  one  may  in  general  put  his  property  to  any  use  he 
pleases  not  in  itself  unlawful,  his  neighbor  has  the  same  right  to 
the  undisturbed  enjoyment  of  his  adjoining  property.  *  *  * 
What  standard  does  the  law  provide  ?  *  *  *  Whatever  may  be 
the  law  in  other  jurisdictions,  it  must  be  regarded  as  settled  in  this 
state  that  the  test  is  the  reasonableness  or  unreasonableness  of  the 
business  in  question  under  all  the  circumstances."  Ladd  v.  Brick 
Co.,  68  N.  H.  185,  186.  "The  common-law  right  of  the  ownership 
of  land,  in  its  relationship  to  the  control  of  surface  water,  as  un- 


T300 


HORAX    Z'.    BYRNES. 


I 


derstood  by  the  courts  of  this  state  for  many  years,  does  not  sanc- 
tion or  authorize  practical  injustice  to  one  landowner  by  the  arbi- 
?;rary  and  unreasonable  exercise  of  the  right  of  dominion  by  an- 
other" (Franklin  v.  Durgee,  yi  N.  H.  i86),  but  makes  the  test  of 
the  right  the  reasonableness  of  the  use  under  all  the  circumstances. 
In  such  case  the  purpose  of  the  use,  whether  understood  by  the 
landowner  to  be  necessary  or  useful  to  himself,  or  merely  intended 
to  harm  another,  may  be  decisive  upon  the  question  of  right.  It 
cannot  be  justly  contended  that  a  purely  malicious  use  is  a  reason- 
able use.  The  question  of  reasonableness  depends  upon  all  the  cir- 
cumstances— the  advantage  and  profit  to  one  of  the  uses  attacked, 
and  the  unavoidable  injury  to  the  other.  Where  the  only  advantage 
to  one  is  the  pleasure  of  injuring  another,  there  remains  no  foun- 
dation upon  which  it  can  be  determined  that  the  disturbance  of  the 
other  in  the  lawful  enjoyment  of  his  estate  is  reasonable  or  neces- 
sary. There  is  no  sound  ground  upon  which  a  distinction  can  be 
made  against  the  plaintiff's  right  to  use  his  land  for  the  enjoyment 
of  tha  air  and  light  which  naturally  come  upon  it,  in  favor  of  his 
right  to  use  it  to  enjoy  the  waters  which  naturally  flow  upon  or 
under  it,  except  the  fact  that  the  use  of  land  for  buildings  necessa- 
rily cuts  off  air  and  light  from  the  adjoining  estate.  The  fact  that 
the  improvement  of  real  estate  in  this  way  for  a  useful  purpose,  uni- 
versally conceded  to  be  reasonable,  may  affect  the  adjoining  owner's 
enjoyment  of  his  estate  to  the  same  extent  as  a  like  act  done  solely 
to  injure  the  other,  is  not  a  sufficient  reason  for  distinguishing  the 
right  to  build  upon  the  surface  from  the  right  to  dig  below  it  or  to 
control  the  surface  itself.  Jurisdictions  which  reject  the  doctrine 
of  reasonable  necessity,  reasonable  care,  and  reasonable  use,  which 
"prevail  in  this  state  in  a  liberal  form,  on  a  broad  basis  of  general 
principle"  {Haley  v.  Colcord,  59  N.  H.  7),  as  applied  to  the  own- 
ership of  real  estate,  in  favor  of  the  principle  of  absolute  dominion, 
may  properly  consider  a  malicious  motive  immaterial  upon  the 
rightfulness  of  a  particular  use ;  but  in  this  state,  to  do  so  would 
be  to  reject  the  principle  announced  in  Bassett  v.  Company,  43  N. 
H.  569,  and  repeatedly  reaffirmed  during  the  last  forty  years. 

But  the  landowner's  right  in  the  enjoyment  of  his  estate  being 
that  of  reasonable  use  merely,  there  attaches  at  once  to  each  the 
correlative  right  not  to  be  disturbed  by  the  malicious,  and  hence 
unreasonable,  use  made  by  another.  To  hold  that  a  right  is  infringed 
because,  by  the  noxious  use  made  by  another,  the  air  coming  upon 
a  landowner's  premises  is  made  more  or  less  injurious,  and  to  deny 
the  invasion  of  a  right  by  an  unreasonable  use  which  shuts  off  air 
and  light  entirely,  is  an  attempt  to  bound  a  right  inherent  and  es- 
sential to  the  common  enjoyment  of  property  by  the  limitations 
of  an  ancient  form  of  action.  An  unreasonable  use  of  one  estate 
may  constitute  a  nuisance  by  its  diminution  of  the  right  of  enjoyment 
of  another,  without  furnishing  all  the  elements  necessary  to  maintain 
an  action  qiiare  claiisum  fregit.  As,  therefore,  the  statute  does  not 
deprive  the  plaintiff'  of  any  right  to  a  reasonable  use  of  his  land, 
but  only  prohibits   an  unnecessary,  unreasonable  use,   it  does  not 


GALLAGHER   7'.    DODGE.  1301 

deprive  him  of  any  property  right.  Hence  it  is  not  necessary  to  in- 
<|uire  whether,  as  an  invasion  of  property  rights,  the  limitation  of 
the  statute  is  one  which  might  properly  be  made  for  the  gen- 
eral good.  ^ 

:;:  *  :■;  ^  :{: 

The  objection  based  upon  the  unconstitutionality  of  the  statute 
is  not  sustained,  and  the  exception  to  the  denial  of  the  motions  for 
a  nonsuit  and  to  direct  a  verdict  upon  that  ground  is  overruled. 


GALLAGHER  r.  DODGE. 

Supreme  Court  of  Errors,  Connecticut,  1880.     48  Conn.  387. 

LoOMis,  J.  This  is  a  petition  for  an  injunction  under  the  stat- 
ute (Gen.  Statutes,  p.  477,  sec.  4)  which  provides  that  "an  injunc- 
tion may  be  granted  against  the  malicious  erection  by  an  owner  or 
lessee  of  land  of  any  structure  upon  it  intended  to  annoy  and  injure 
any  proprietor  of  adjacent  land  in  respect  to  his  use  or  disposition 
of  the  same." 

The  structure  which  it  is  sought  to  enjoin  the  defendants 
against  erecting,  is  a  show-case  in  front  of  their  store  and  upon  their 
own  premises,  but  to  be  so  placed  as  to  obstruct  a  side  window  in 
the  plaintiff's  store,  w^hich  store  projects  several  feet  beyond  that  oc- 
cupied by  the  defendants,  and  thus  has  space  for  a  side  window 
looking  out  u-pon  the  platform  constructed  from  the  front  of  the 
defendants'  store  to  the  street  line.  This  side  window  is  upon  the 
line  between  the  premises  of  the  two  parties,  and  serves  the  occu- 
pant of  the  plaintiff's  store  both  for  light  and  for  the  display  of 
his  goods. 

It  is  found  that  the  object  of  the  defendants  in  procuring  the 
show-case  was  two-fold — first,  to  display  their  own  goods  to  the 
best  advantage ;  and  second,  to  prevent  the  public  from  seeing  the 
goods  of  the  occupant  of  the  plaintiff's  store  through  his  side  win- 
dow. 

It  was  the  right  of  the  defendants,  and  the  exercise  of  the  right 
could  not  be  regarded  as  unreasonable,  to  occupy  the  space  between 
the  front  of  their  store  and  the  street  line  in  the  way  most  ad- 
vantageous to  their  business.  They  were  under  no  obligation  to 
consult  the  interests  of  an  adjoining  proprietor.  So  far  as  he  was 
availing  himself  of  the  open  space  to  secure  to  himself  more  light 
i)y  a  window  looking  out  upon  it.  or  an  opportunity  to  display  his 
goods  by  exposing  them  in  the  window,  he  was  availing  himself  of 
an  opportunity  that  he  held,  and  must  have  known  that  he  held, 
by  mere  sufferance,  for  the  defendants'  store  could  at  any  time 
have  been  built  out  in  front  up  to  the  street  line,  and  so  as  com- 
I^letely  to  darken  his  side  window,  with  no  invasion  of  his  rights 
and  no  ground  of  complaint  on  his  part.  If  possibly  a  building  line 
established  by  the  city  would  have  prevented  them  from  building 
out  to  the  street  line,  the  mere  fact  that  the  plaintiff's  building  was 
erected  before  the  building  line  was  established  was  one  that  gave 


1302  GALLAGHER   7'.    DODGE. 

him  no  rights  against  the  defendants  as  to  the  open  space  in  front  of 
their  premises.  What  they  might  have  done  so  effectually  by  build- 
ing out  over  this  space  they  had  an  equal  right  to  do  in  any  other 
mode  no  more  injurious  to  the  adjoining  proprietor.  We  cannot 
see  why  they  might  not  reasonably  do  it  in  the  mode  which  they 
adopted. 

But  it  is  claimed  that  the  whole  character  of  the  act  as  to  its 
legality  is  changed  by  the  fact  that  an  element  of  malice  went  into 
it.  And  this  brings  us  to  the  difficult  question  where  the  line  shall 
be  drawn  between  structures  that  are  useful  and  proper  in  them- 
selves, but  into  the  erection  of  which  a  subordinate  malicious  motive 
enters,  and  those  where  the  malicious  intent  is  the  leading  feature 
of  the  act,  and  the  possible  usefulness  of  the  structure  a  mere  inci- 
dent. 

The  only  case  in  which  this  statute  has  come  up  for  construc- 
tion is  that  of  Harbison  v.  White,  46  Conn.  106,  in  which  it  was  held 
that  a  coarse  structure  erected  for  the  malicious  purpose  of  darken- 
ing th>j  windows  of  a  neighbor  fell  within  the  intent  of  'the  statute, 
although  it  might  serve  a  useful  purpose  in  screening  the  defendants' 
premises  from  observation.  Here  the  malicious  purpose  was  alto- 
gether the  predominant  one,  and  the  usefulness  of  the  structure  very 
limited  and  merely  incidental.  In  the  present  case  these  conditions 
are  reversed,  and  it  is  found  that  the  primary  purpose  was  the  rea- 
sonable and  proper  one  of  displaying  the  defendants'  goods,  while 
the  malicious  part  of  the  motive  was  secondary.  While  we  are  not 
prepared  to  say  that  this  relation  of  the  two  motives  should  always 
determine  the  court  against  the  granting  of  an  injunction,  and  the 
opposite  relation  in  favor  of  granting  one,  yet  we  regard  the  pre- 
dominance of  the  malicious  motive  as  generally  essential  to  a  case 
in  which  the  court  will  think  itself  justified  in  interfering.  The 
statute  speaks  of  the  structure  intended  as  a  "malicious  erection," 
and  one  the  intent  of  which  is  "to  annoy  and  injure  any  proprietor 
of  adjacent  land."  We  think  w^e  do  not  go  too  far  in  saying  that 
this  malicious  intent  must  be  so  predominatmg  as  a  motive  as  to  give 
character  to  the  structure.^  It  must  be  so  manifest  and  positive  that 
the  real  usefulness  of  the  structure  will  be  as  manifestly  subordinate 
and  incidental.  The  law  regards  with  jealousy  all  attempts  to  limit 
the  use  to  which  a  man  may  put  his  own  property.  This  right  to 
use  is  always  subject  to  the  wholesome  limitation  of  the  common 
law,  that  every  one  must  so  use  his  own  property  as  not  to  mjure 
another's,  and  the  person  who  violates  this  rule  is  liable  to  the  per- 
son injured  whether  he  has  any  malicious  intent  or  not ;  but  here 
the  new  principle  is  introduced,  that  the  landowner  may  erect  no 
structure  on  his  own  premises,  however  lawful  it  would  otherwise 


*  See  Kirkwood  v.  Finegan,  95  Mich.  543  (1893),  where  it  was  held  that 
the  character  and  style  of  the  building  was  such  as  to  show  "the  motive  which 
prompted  its  erection";  and  Park,  J.,  in  Mctz  v.  Tierney,  13  N.  Mcx.  363 
(18%),  "It  may  be  that  a  structure  of  this  kind''  (a  rude  screen  put  up  to 
shut  off  the  defendant's  windows  from  observation)  "mip^ht  under  some  cir- 
cumstances, be  so  grossly  unsuited  or  disproportionate  to  the  uses  claimed  for 
it  as  to  amount  to  proof  of  malice." 


GALLAGHER    t'.    DODGE.  I3O3 

be,  if  he  does  it  maliciously,  with  intent  to  annoy  his  neighbor.^  The 
common  law  has  always  regarded  the  existence  of  malice  in  the 
exercise  or  pursuit  of  one's  legal  rights  as  of  no  consequence;  just 
as  its  absence  is  of  no  consequence  in  the  cases  of  injury  caused  by 
wrongful  acts.  The  inquiry  into  and  adjudication  upon  a_  man's 
motives  has  always  been  regarded  as  beyond  the  domain  of  civil  ju- 
risprudence, which  resorts  to  presumptions  of  malice  from  a  party's 
acts  instead  of  inquiring  into  the  real  inner  workings  of  his  mind. 
When,  therefore,  we  inquire  how  far  a  man  was  actuated  by  malice 
in  erecting  a  structure  upon  his  own  land,  we  are  inquiring  after 
something  that  it  will  always  be  very  difficult  to  ascertain,  unless  we 
adopt,  as  in  other  cases  where  the  courts  inquire  after  malice,  a  pre- 
sumption of  malice  from  the  act  done.  And  in  this  view  of  the 
matter  we  think  no  rule  can  be  laid  down  that  is  on  the  whole  more 
easy  of  application,  than  that  the  structure  intended  by  the  statute 
must  be  one  which  from  its  character,  or  location,  or  use,  must  strike 
an  ordinary  beholder  as  manifestly  erected  with  a  leading  purpose 
to  annoy  the  adjoining  owner  or  occupant  in  his  use  of  his  premises. 
If  the  defendant  has  erected  a  house  or  block  on  his  own  land,  so 
close  to  the  dividing  line  between  his  lot  and  his  neighbor's  as  to 
darken  the  side  windows  of  his  neighbor's  house,  no  one  would  say 
that  he  had  done  a  thing  that  was  mainly  intended  to  annoy  his 
neighbor,  and  yet  in  his  heart  there  may  have  been  a  malicious  de- 
light at  the  damage  he  was  doing  his  neighbor.  In  such  a  case  the 
obvious  proprie-ty  of  such  an  erection  should  determine  the  ques- 
tion in  favor  of  the  party  making  it,  without  putting  him  under 
oath  as  to  his  motives.  In  the  same  way,  if  a  landowner  should 
locate  a  privy  or  pig-sty  directly  on  his  line,  and  as  close  as  possible 
to  the  near  parlor  windows  of  his  neighbor,-  or  should  erect  a  rough 
screen  of  boards  before  his  windows  to  darken  them,  the  very  char- 
acter and  location  of  the  structures  would  strike  every  beholder  as 
decisive  evidence  of  an  intent  to  annoy,  and  of  this  intent  as  an 
entirely  predominant  one ;  and  a  court  might  very  properly  so  deter- 
mine without  leaving  the  case  to  rest  on  proof,  generally  the  party's 
own  oath,  that  there  was  no  malice  in  the  case. 

Applying  this  rule  to  this  case  it  is  very  questionable  whether 
any  ordinary  observer  would  not  see,  in  the  structure  here  com- 
plained of,  one  which  the  defendants  might  reasonably  erect,  as  a 
proper  means  of  exhibiting  their  own  goods,  and  a  proper  use  of 
the  space  in  front  of  their  store,  which  was  theirs  for  every  reason- 
able and  legitimate  use,  and  therefore  one  of  which  the  plaintiff  has 
no  right  to  complain  ;  while  the  intent  to  annoy  the  occupant  of  the 
plaintiff's  store,  though  found  as  a  fact,  and  though  without  the 
show-case  might  not  have  been  procured,  was  really  subordinate  to 
the  legitimate  purpose.     But  whether  or  not  an  ordinary  observer 

'Compare  Kuzniak  v.  Kozminski,  107  Mich.  444  (1895),  holding  that  if 
the  structure,  a  shed  used  by  tenants  for  storing  coal,  serves,  a  useful  purpose, 
''while  there  may  have  been  some  malice  displayed  in  putting  it  so  near  the 
complainant's  house  as  to  shut  off  some  of  the  light,  that  would  not  be  a  suf- 
ficient reason  on  which  to  found  a  right  in  complainant  to  have  the  build- 
ing removed." 


1304  Gallagiii:k  7\  dodge. 

would  have  so  regarded  the  structure,  the  court  has  here  found  as 
a  fact,  upon  what  evidence  it  does  not  appear,  that  the  primary  ob- 
ject of  the  defendants  was  the  legitimate  one  of  displaying  their 
goods,  and  the  intent  to  annoy  the  neighbor  only  a  secondary  one. 
And  we  think  it  therefore,  considering  all  the  circumstances,  a  case 
that  falls  within  the  line,  which  we  do  not  attempt  to  define  with 
exactness,  that  divides  structures  that  the  court  will  not  interfere 
with  from  those  against  which  the  statute  intended  to  furnish  a 
protection. 

There  is  a  feature  of  this  case  that  w^e  ought  perhaps  to  notice 
more  particularly.  The  occupant  of  the  plaintiff's  store  and  the 
defendants  were  rivals  in  business.  It  was  the  right  of  each  not 
only  to  show  his  own  w^ares  to  the  best  advantage,  but  also  to  pre- 
vent the  other  from  getting  any  advantage  in  the  exhibition  of  his 
to  which  he  was  not  legally  entitled.  While  such  competition  in  all 
business  tends  to  benefit  the  public,  there  are  yet  many  things  done 
in  it  that  are  by  no  means  commendable,  and  which  often  belong  to 
a  low  level  of  morality,  but  which  are  yet  beyond  the  control  of  law. 
The  act  of  the  defendants  in  this  case  was,  at  the  worst,  of  that 
character.  So  far  as  it  was  intended  to  annoy  the  occupant  of  the 
plaintiff's  store  it  was  not  so  much  from  malice,  as  we  ordinarily 
understand  that  term,  and  as  we  think  it  is  to  be  understood  in  the 
statute,  as  from  a  spirit  of  competition  in  business — of  ill  will  per- 
haps— yet  not  so  much  against  the  object  of  it  as  an  individual  as 
against  him  as  a  rival  in  business.  We  do  not  mean  to  say  that 
such  acts  may  not  be  carried  so  far  as  to  fall  within  the  condemna- 
tion of  the  statute,  but  we  think  that,  to  do  so,  they  must  as  a  gen- 
eral rule  gO'  quite  beyond  the  petty  hostilities  of  business  compe- 
tition. 

A  question  was  made  by  the  defendants  whether  the  action 
could  be  maintained  by  the  plaintiff,  as  owner  of  the  premises,  while 
the  acts  complained  of  were  directed  wholly  against  his  lessee,  who 
was  occupying  the  store,  and  whose  business,  it  was  claimed,  was 
injured  by  them.  In  the  view  we  have  taken  of  the  case  we  have 
not  thought  it  necessary  to  consider  this  question.  We  have  treated 
the  case  as  if  the  plaintiff  had  himself  been  the  occupant. 

There  is  nb  error  in  the  judgment  complained  of. 

In  this  opinion  the  other  judges  concurred.^ 


'In  Ridcout  v.  Knox,  148  Mass.  368  (1889),  it  was  held  that  the  desire 
to  injure  must  be  the  dominant  motive.  "A  man,"  says  Holmes,  J.,  "cannot 
be  punished  for  malevolently  maintaining  a  fence  for  the  purpose  of  annoy- 
ing his  neighbor,  merely  because  he  feels  pleasure  at  the  thought  that  he  is 
giving  annoyance,  if  that  pleasure  alone  would  not  induce  him  to  maintain  it 
for  other  reasons,  if  that  pleasure  was  denied  him.  If  the  height  above  six 
feet  is  really  necessary  for  any  reason,  there  is  no  liability,  whatever  the 
motives  of  the  owner  in  erecting  it."  Accord:  Lord  v.  Langdon,  91  Maine 
221  (1898),  and  compare  Hunt  v.  Coggin.  66  N.  H.  140  (1889).  But  it  is 
not  necessarv  that  the  purpose  to  annoy  should  be  the  sole  motive,  Healey  v. 
S Paulding,  104  Maine  122  (1909).  In  Jones  v.  Williams,  56  Wash.  588 
(1910).  it  is  held  that  if  the  structure  enhances  "the  value,  usefulness  or  en- 
joyment of  land"  it  is  not  a  nuisance,  no  matter  how  malicious  the  owner's 
purpose  in  erecting  it;  and  see  Kuzniak  v.  Kozminski,  107  Mich.  444  (1895). 


I 


HOLBROOK   V.    MORRISON.  I305 

HOLBROOK  ^o.  MORRISON. 
Supreme  Judicial  Court  of  Massachusetts,  1913.    214  Mass.  209. 

]\IoRTON,  J.  The  plaintiffs  are  dealers  in  real  estate  and  own 
a  number  of  lots  on  Wellington  Hill  in  the  Dorchester  District  of 
the  City  of  Boston.  The  defendant  owns  a  house  and  lot  abutting 
on  two  of  the  lots  belonging  to  the  plaintiffs  and  in  close  proximity 
to  the  others.  She  has  caused  to  be  placed  on  the  front  of  her  house 
a  large  sign  headed  with  the  words  "For  Sale,"  and  concluding  with 
the  words  "Best  offer  from  Colored  Family,"  all  in  large  letters. 
The  first  entrance  on  to  Wellington  Hill  and  the  way  prospective 
purchasers  would  take  in  going  there  is  past  her  house.  She  has 
also  caused,  it  is  alleged,  advertisements  of  a  like  tenor  to  be  in- 
serted in  the  "Boston  Globe,"  a  newspaper  of  large  circulation,  and 
has  threatened  and  is  threatening  to  sell  her  house  and  lot  to  a 
colored  family.  This  is  a  bill  to  restrain  the  defendant  from  ma- 
liciously interfering  with  the  plaintiffs'  business  by  means  of  such 
sign  and  advertisements  and  by  such  threats.  The  bill  alleges  that 
the  effect  of  the  defendant's  acts  has  been  greatly  to  injure  the  sale 
of  the  plaintiffs'  lots  and  that  the  defendant's  purpose  is  to  injure 
the  plaintiff's'  business,  and  that  she  had  no  real  intention  of  selling 
her  house  and  lot, to  members  of  the  negro  race. 

The  case  was  heard  by  a  single  justice,  Loring,  J.,  and  comes 
here  on  a  report  by  him  of  the  evidence  and  of  a  finding  made  by 
him  "that  the  defendant  did  not  put  up  the  sign  for  the  sole  pur- 
pose of  selling  her  property,  but  that  she  did  it  for  the  purpose  of 
annoying  the  plaintiffs."  This  finding  was  made  by  the  single  jus- 
tice "without  going  into  the  question  of  whether  she  (the  defendant) 
was  justified  in  having  that  ill  feeling;"  and  the  report  concludes, 
"such  decree  to  be  entered  by  the  court  as  justice  and  equity  may 
require." 

It  appeared  from  the  uncontradicted  evidence  that  the  threat- 
ened sale  by  the  defendant  of  her  house  and  lot  to  a  colored  family 
has  injured  and  will  continue  to  injure  the  business  of  the  plaintiffs 
unless  prevented.  We  interpret  the  finding  made  by  the  single  jus- 
tice as  meaning  that  one  purpose  which  the  defendant  had  in  putting 
up  the  sign  and  in  advertising  her  property  as  she  did  was  to  sell  it. 
She  also  had  the  purpose,  as  he  finds,  of  annoying  the  plaintiffs. 

There  can  be  no  doubt  that  the  defendant  has  the  right  to  ad- 
vertise her  property  for  sale  by  signs  or  otherwise  in  the  usual  way, 
and  to  sell  it  if  she  sees  fit  to  a  negro  family,  even  though  the  effect 
may  be  to  impair  the  business  of  the  plaintiffs  ;  just  as,  for  instance, 
the  owner  of  land  on  a  hillside  may  cultivate  it  in  the  usual  way 
even  though  the  effect  of  the  surface  drainage  may  be  to  fill  up  his 
neighbor's  mill  pond  below.  Middlesex  Co.  v.  AlcCue,  149  IMass. 
103.  Does  the  presence  in  the  sign  and  advertisements  of  a  malevo- 
lent motive  quoad  the  plaintiffs,  although  they  are  not  named,  in- 
tended to  annoy  and  in  fact  annoying  and  injuring  the  plaintiffs' 
business  by  announcing  in  effect  that  the  property  is  for  sale  to  a 


1306  BRADFORD    Z'.    PICKLES. 

colored  family  change  what  otherwise  would  be  a  legal  right  into 
an  actionable  wrong?  It  would  seem  clear  according  to  our  own 
decisions  that  it  does  not.  Rideoiit  v.  Knox,  148  Mass.  368.  Green-- 
leaf  V.  Francis,  18  Pick.  117.  Walker  v.  Cronin,  107  Mass.  555. 
See  also  Frazicr  v.  Brozvn,  12  Ohio  St.  294;  ChatHeld  v.  Wilson,  28 
Vt.  49;  Mahan  v.  Brozvn,  13  Wend.  261.  In  the  present  case  it  is 
plain,  as  we  have  said,  that  the  defendant  has  the  right,  if  she  sees 
fit  to  do  so,  to  sell  her  house  and  lot  to  a  negro  family  whatever  the 
effect  may  be  upon  the  plaintiffs'  business  and  property.  If  she  had 
put  up  the  sign  and  had  caused  the  advertisements  to  be  inserted 
without  any  such  intention  as  alleged  in  the  bill  of  selling  her  prop- 
erty but  solely  with  the  purpose  of  injuring  the  business  and  prop- 
erty of  the  plaintiff's,  there  can  be  no  doubt  that  such  conduct  on  her 
part  would  have  been  actionable.  As  was  said  in  Rideout  v.  Knox, 
148  Mass.  368,  372,  "the  right  to  use  one's  property  for  the  sole 
purpose  of  injuring  others  is  not  one  of  the  immediate  rights  of 
ownership."'  But  as  we  have  construed  the  finding  of  the  single 
justice,  one  of  her  purposes  in  putting  up  the  sign  was  to  sell  her 
property,  which  was  a  lawful  purpose  and  one  of  the  indefeasible 
rights  of  ownership.^ 


SECTION  3. 


The  Right  to  Appropriate  the  Benefit  of  Natural  Resources. 
Common  to  Several  Landowners. 


CORPORATION  OF  BRADFORD  v.  PICKLES. 

Court  of  Appeals,  1894.     L.  R.  1895,  Ch.  Div.  145. 
House  of  Lords,  1895.    L.  R.  1895,  App.  Cos.  587. 

LiNDLEV,  L.  J.  The  plaintiffs  in  this  case  are  (inter  alia)  a 
waterworks  company,  and  they  want  water.  The  defendant  is  the 
owner  of  some  land  which  is  full  of  water  which  he  does  not  want. 
This  water  supplies  some  wells  which  belong  to  the  plaintiff,  and, 
if  cut  off  by  the  defendant,  will  materially  diminish  the  water  which 
the  plaintiffs  will  be  able  to  pump.  The  defendant  says  to  the  plain- 
tiffs, 'Tf  you  want  me  to  supply  you  with  water  you  must  pay  me 
for  it,  and  if  you  will  not  pay  me  what  I  want,  you  shall  not  have 
the  water  from  my  land,  and  I  will  cut  it  off."  The  defendant  and 
the  plaintiffs  being  unable  to  come  to  terms,  the  defendant  has  be- 
gun to  construct  works  which,  if  completed,  will  cut  off,  or  at  all 


^  See  Falloon  v.  Schilling,  29  Kans.  292  (1883),  where  the  court  refused 
to  restrain  the  defendant,  who  had  quarreled  with  the  plaintiff  because  he  had 
refused  to  sell  his  adjoining  property  to  the  defendant,  from  erecting  near 
the  division  line  small  tenements  to  be  rented  to  negroes. 


BRADFORD   V.    PICKLES.  I307 

events  greatly  dimmish,  the  plaintiff's  supply.  The  plaintiffs  there- 
upon bring  this  action  and  apply  'for  an  injunction,  which  Mr.  Jus- 
tice North  has  granted.  The  defendant  has  appealed;  and  this 
Court  has  now  to  decide  whether  the  injunction  can  be  maintained 
or  not. 

I  entirely  concur  in  the  view  taken  by  Mr.  Justice  North  of  the 
conduct  of  the  defendant.  He  does  not  want  the  water  himself,  nor 
does  he  want  to  get  rid  of  it  in  order  the  better  to  work  his  own 
land.  He  simply  wants  to  force  the  plaintiffs  to  buy  his  land,  or  the 
water  coming  from  it,  at  his  own  price,  regardless  of  the  interests 
of  other  people  who  will  be  seriously  inconvenienced  if  the  defend- 
ant cuts  off  the  supply.  But  Mr.  Justice  North  held,  and  in  my 
opinion  rightly  held,  that  these  circumstances  are  not  enough  to  jus- 
tify the  Court  in  interfering  with  the  defendant.  The  only  ques- 
tion a  Court  9f  Law  or  Equity  can  consider  is  whether  the  defend- 
ant has  a  right  to  do  what  he  threatens  and  intends  to  do.  If  he  has 
he  cannot  be  interfered  with,  however  selfish,  vexatious,  or  even 
malicious  his  conduct  may  be:  see  Chasemore  v.  Richards,  7  H.  L. 
C.  349.  This  is  not  one  of  those  in  which  an  improper  object  or  mo- 
tive makes  an  otherwise  lawful  act  actionable.  It  is  not  like  libel 
or  malicious  prosecution,  or  what  are  called  frauds  on  powers. 

Apart  'from  special  legislation,  the  right  of  the  defendant  to 
drain  his  own  land  by  getting  rid  of  all  the  water  which  percolates 
into  and  through  it  underground  cannot  be  denied :  see  Chasemore 
V.  Richards  and  Acton  v.  BlundcU,  12  M.  &  W.  324,  354;  and  this 
is  all  that  he  is  doing.  He  is  not  diverting  any  defined  stream.  If, 
as  the  plaintiffs  say,  he  is  not  entitled  to  do  what  he  intends  to  do, 
it  must  be  by  reason  of  some  special  legislation,  and  not  by  reason 
of  the  ordinary  law  of  the  country. 

Lord  Halsbury,  L.  C.  Apart  from  the  consideration  of  the 
particular  Act  of  Parliament  incorporating  the  plaintiffs,  which  re- 
quires separate  treatment,  the  question  whether  the  plaintiffs  have 
a  right  to  the  flow  of  such  water  appears  to  me  to  be  covered  by 
authority.  In  the  case  of  Chasemore  v.  Richards,  it  became  neces- 
sary for  this  House  to  decide  whether  an  owner  of  land  had  a  right 
to  sink  a  well  upon  his  own  premises,  and  thereby  abstract  the  sub- 
terranean water  percolating  through  his  own  soil,  which  woidd 
otherwise,  by  the  natural  force  of  gravity,  have  found  its  way  into 
springs  which  fed  the  River  Wandle,  the  flow  of  which  the  plaintiff 
in  the  action  had  enjoyed  for  upwards  of  sixty  years. 

The  question  was  then  determined  by  this  House,  and  it  was 
held  that  the  landowner  had  a  right  to  do  what  he  had  done  what- 
ever his  object  or  purpose  might  be,  and  although  the  purpose  might 
be  wholly  unconnected  with  the  enjoyment  of  his  own  estate. 

The  only  remaining  point  is  the  question  of  fact  alleged  by  the 
plaintiffs,  that  the  acts  done  by  the  defendant  are  done,  not  with  any 
view  which  deals  with  the  use  of  his  own  land  or  the  percolating 
water  through  it,  but  is  done,  in  the  language  of  the  pleader,  "ma- 
liciously." I  am  not  certain  that  I  can  understand  or  give  any  in- 
telligible construction  to  the  word  so  used.     Upon  this  supposition 


1308  BR/VDFORD    T'.    PICKLES. 

on  which  I  am  now  arguing,  it  comes  to  an  allegation  that  the  de- 
fendant did  maliciously  something  that  he  had  a  right  to  do.  If 
this  question  were  to  have  been  tried  in  old  times  as  an  injury  to 
the  right  in  an  action  on  the  case,  the  plaintiffs  would  have  had  to 
allege,  and  to  prove,  if  traversed,  that  they  were  entitled  to  the 
flow  of  the  water,  which,  as  I  have  already  said,  was  an  allegation 
they  would  have  failed  to  establish. 

This  is  not  a  case  in  which  the  state  of  mind  of  the  person  do- 
ing the  act  can  affect  the  right  to  do  it.  If  it  was  a  lawful  act,  how- 
ever ill  the  motive  might  be,  he  had  a  right  to  do  it.  If  it  was  an 
unlawful  act,  however  good  his  motive  might  be,  he  would  have  no 
right  to  do  it.  ^Motives  and  intentions  in  such  a  question  as  is  now 
before  your  Lordships  seem  to  me  to  be  absolutely  irrelevant.  But 
I  am  not  prepared  to  adopt  Lindley  L.  J.'s  view  of  the  moral 
obliquity  of  the  person  insisting  on  his  right  when  that  right  is 
challenged.  It  is  not  an  uncommon  thing  to  stop  up  a  path  which 
may  be  a  convenience  to  everybody  else,  and  the  use  of  which  may 
be  nc  inconvenience  to  the  owner  of  the  land  over  which  the  path 
goes.  But  when  the  use  of  it  is  insisted  upon  as  a  right,  it  is  a  famil- 
iar mode  of  testing  that  right  to  stop  the  permissive  use,  which  the 
owner  of  the  land  would  contend  it  to  be,  although  the  use  may  form 
no  inconvenience  to  the  owner. 

So,  here,  if  the  owner  of  the  adjoining  land  is  in  a  situation  in 
which  an  act  of  his,  lawfully  done  on  his  own  land,  may  divert  the 
water  which  would  otherwise  go  into  the  possession  of  this  trading 
company,  I  see  no  reason  why  he  should  not  insist  on  their  purchas- 
ing of  his  interest  from  which  this  trading  company  desires  to  make 
profit. 

For  these  reasons,  my  Lords,  I  am  of  opinion  that  this  appeal 
ought  to  be  dismissed  without  costs,  and  that  the  plaintiffs  should 
pay  to  the  defendant  the  costs  both  here  and  below. 

Lord  Watson.  But  the  appellants  pleaded  at  your  Lordships' 
Bar,  as  they  did  in  both  Courts  below,  that  the  principal  of  Chase- 
more  V.  Richards  is  applicable  to  the  present  case,  because,  in  the 
first  place,  the  operations  contemplated  and  commenced  by  the  re- 
spondent are  by  statute  expressly  prohibited ;  and,  in  the  second 
place,  these  operations  were  designed  and  partly  carried  out  by  the 
respondent,  not  with  the  honest  intention  of  improving  the  value 
of  his  land  or  minerals,  but  with  the  sole  object  of  doing  injury  to 
their  undertaking. 

The  second  plea  argued  by  the  appellants,  which  was  rejected  by 
both  Courts  below,  was  founded  upon  the  text  of  the  Roman  law 
(Dig.  lib.  39,  tit.  3,  art.  i,  s.  12),  and  also,  somewhat  to  my  surprise, 
upon  the  law  of  Scotland.  I  venture  to  doubt  whether  the  doctrine 
of  Marcellus  would  assist  the  appellants'  contention  in  this  case ;  but 
it  is  unnecessary  to  consider  the  point,  because  the  noble  and  learned 
Lords  who  took  part  in  the  decision  of  Chasemore  v.  Richards,  held 
that  the  doctrine  had  no  place  in  the  law  of  England. 

I  desire,  however,  to  say  that  I  cannot  assent  to  the  law  of 
Scotland  as  laid  down  by  Lord  Wensleydale  in  Chasemore  v.  Rich- 


BRADFORD  t'.    PICKLES.  I3O9 

» 

ards,  7  H.  L.  C.  at  p.  388.  The  noble  and  learned  lord  arppears  to 
nave  accepted  a  passage  in  :\lr.  Beirs  Principles  (sect.  966),  which 
is  expressed  in  very  general  terms,  and  is  calculated  to  mislead 
unless  it  is  read  in  the  light  of  the  decisions  upon  which  it  is  founded. 
I  am  aware  that  the  phrase  "in  aemulationem  vicini"  was  at  one 
time  frequently,  and  is  even  now  occasionally,  very  loosely  used  by 
Scottish  lawyers.  But  I  know  of  no  case  in  which  the  act  of  a  pro- 
prietor has  been  found  to  be  illegal,  or  restrained  as  being  in  aemu- 
lationem, where  it  was  not  attended  with  offence  or  injury  to  the 
legal  rights  of  his  neighbor.  In  cases  of  nuisance  a  degree  of  in- 
dulgence has  been  extended  to  certain  operations,  such  as  burning 
limestone,  which  in  law  are  regarded  as  necessary  evils.  If  a  land- 
owner proceeded  to  burn  limestone  close  to  his  marsh  so  as  to 
cause  annoyance  to  his  neighbor,  there  being  other  places  on  his 
property  where  he  could  conduct  the  operation  with  equal  or  greater 
convenience  to  himself  and  without  giving  cause  of  offence,  the 
Court  would  probably  grant  an  interdict.  But  the  principle  of 
aemulatio  has  never  been  carried  further.  The  law  of  Scotland,  if 
it  dift'ers  in  that,  is  in  all  other  respects  the  same  with  the  law  of 
England.  No  use  of  property,  which  would  be  legal  if  due  to  a 
proper  motive,  can  become  illegal  because  it  is  prompted  by  a  motive 
which  is  improper  or  even  malicious. 

I  therefore  concur  in  the  judgment  which  has  been  moved  by 
the  Lord  Chancellor. 

Lord  Ashbourne.  Mr.  Pickles  has  acted  within  his  legal  rights 
throughout ;  and  is  he  to  forfeit  those  legal  rights  and  be  punished 
for  their  legal  exercise  because  certain  motives  are  imputed  to 
him?  If  his  motives  were  the  most  generous  and  philanthropic 
in  the  world,  they  would  not  avail  hira  when  his  actions  were  il- 
legal. If  his  motives  are  selfish  and  mercenary,  that  is  no  reason 
why  his  rights  should  be  confiscated  when  his  actions  are  legal. 

Lord  MacNagiiten.  /\s  regards  the  first  point,  the  position  of  ■ 
the  appellants  is  one  which  is  not  very  easy  to  understand.  They 
cannot  dispute  the  law  laid  down  by  this  House  in  Chasemore  v. 
Richards,  7  H.  L.  C.  349.  They  do  not  suggest  that  the  under- 
ground water  with  which  Mr.  Pickles  proposes  to  deal  flows  in  any 
defined  channel.  .But  they  say  that  Mr.  Pickles'  action  in  the  matter 
is  malicious,  and  that  because  his  motive  is  a  bad  one,  he  is  not  at 
liberty  to  do  a  thing  which  every  landowner  in  the  country  may  do 
with  impunity  if  his  motives  are  good.  Mr.  Pickles,  it  seems, 
was  so  alarmed  at  this  view  of  the  case  that  he  tried  to  persuade 
the  Court  that  all  he  wanted  was  to  unw-ater  some  beds  of  stone 
which  he  thought  he  could  work  at  a  profit.  In  this  innocent  enter- 
prise the  Court  found  a  sinister  design.  And  it  may  be  taken  that 
his  real  object  was  to  show  that  he  was  master  of  the  situation,  and 
to  force  the  corporation  to  buy  him  out  at  a  price  satisfactory  to 
himself.  Well,  he  has  something  to  sell,  or,  at  any  rate,  he  has 
something  which  he  can  prevent  other  people  enjoying  unless  he  is 
paid  for  it.  Why  should  he,  he  may  think,  without  fee  or  reward, 
keep  his  land  as  a  store-room  for  a  commodity  which  the  corpora- 


13 lO  BARCLAY   r.    ABRAHAM. 

tion  dispense,  probably  not  gratuitousl}-,  to  the  inhabitants  of  Brad- 
ford? He  prefers  his  own  interests  to  the  pubHc  good.  He  may  be 
churlish,  selfish,  and  grasping.  His  conduct  may  seem  shocking 
to  a  moral  philosopher.  But  where  is  the  malice?  iSIr.  Pickles  has 
no  spite  against  the  people  of  Bradford.  He  bears  no  ill-will  to  the 
corporation.  They  are  welcome  to  the  water,  and  to  his  land  too, 
if  they  will  pay  the  price  for  it.  So  much  perhaps  might  be  said 
in  defence  or  in  palliation  of  Mr.  Pickles'  conduct.  But  the  real 
answer  to  the  claim  of  the  corporation  is  that  in  such  a  case  mo- 
tives are  immaterial.  It  is  the  act,  not  the  motive  for  the  act,  that 
must  be  regarded.  H  the  act,  apart  from  motive,  gives  rise  merely 
to  damage  without  legal  injury,  the  motive,  however  reprehensible 
it  may  be,  will  not  supply  that  element.^ 


BARCLAY  V.  ABRAHAM. 

Supreme  Court  of  Iowa,  1903.    121  Iowa  619. 

Ladd,  J.  The  particular  district  within  which  flowing  wells 
may  be  obtained  at  a  depth  varying  from  one  hundred  to  two  hun- 
dred feet  is  three  or  four  miles  in  length  by  about  one-half  mile  in 

^Accord:  Meeker  v.  East  Orange,  76  N.  J.  L.  435  (1908).  facts  practically 
identical  to  Chasemore  v.  Richards;  Chat  field  v.  Wilson,  28  Vt.  49  (1855),  de- 
fendant dug  a  well  which  intercepted  the  percolating  water  which  had  pre- 
viously supplied  the  plaintiff's  well,  so  causing  it  to  go  dry,  the  defendant's  ob- 
ject, or  motive  as  it  was  called,  was  held  immaterial;  lluhcr  v.  Merkcl,  117 
Wis.  355  (1903),  defendant  sank  an  artesian  well  which  seriously  diminished 
the  flow  of  the  plaintiff's  well.  In  Hague y.  Wheeler,  157  Pa.  St.  324  (1893), 
the  owner  of  land  was  held  to  have  a  similar  right  to  appropriate  the  nat- 
ural gas  from  strata  underlying  after  reducing  it  to  possession,  and  to  use, 
sell  or  waste  it  or  to  do  otherwise  what  he  pleased  with  it;  and  see  Kelley 
V.  Ohio  Oil  Co.,  57  Ohio  St.  317  (1897),  accord:  semble,  where,  however, 
the  defendant's  proposed  wells  were  designed  to  obtain  oil  for  his  own  use 
■  and  sale,  the  allegation  being  that  by  their  location  near  the  plaintiff's  line, 
they  would  enable  the  defendant  to  appropriate  more  than  his  fair  share  of 
the  common  supply. 

In  Smith  v.  Brooklyn,  160  N.  Y.  357  (1899),  it  was  held  that  it  is  wrong- 
ful to  diminish  the  waters  in  a  defined  surface  channel  by  the  appropriation 
by  pumping  of  the  subsurface  water  on  adjacent  lands;  contra,  Meeker  v. 
East  Orange,  76  N.  J.  L.  435  (1908)  ;  compare  Grand  Junction  Canal  Co.  v. 
Shugar,  L.  R.  9  Ch.  493  (1871). 

A  landowner's  right  to  sub-surface  water  free  from  contamination,  if 
not  from  diminution  by  reason  of  his  neighbor's  actions  is  recognized  in 
Ballard  v.  Tomlinson,  L.  R.  29  Ch.  Div.  115  (1885),  the  defendant  at  a  con- 
siderable distance  (the  distance  being  immaterial)  deposited  sewage  in  a 
disused  well  which  percolated  into  and  polluted  the  plaintiff's  well;  Collins  v. 
Chartiers  Valley  Gas  Co.,  131  Pa.  St.  143  (1890);  Kinnaird  v.  Standard  Oil 
Co.,  89  Ky.  468  (1890),  compare  New  River  Co.  v.  Johnson.  2  E.  &  E.  435 
(1860). 

As  to  the  liability  of  persons,  other  than  adjacent  owners  appropriating 
by  operations  in  their  land  the  water  underlying  it  by  diverting  the  supply 
of  the  plaintiff's  springs,  see  Parker  v.  Boston  &  M.  R.  Co.,  3  Cush.  107 
(Mass.  1849)  ;  Hart  v.  Jamaica  Pond  Aqueduct  Corp.,  133  Mass.  488  (1882)  ; 
United  States  v.  Alexander,  148  U.  S.  186  (1892),  wells  drained  by  the  execu- 
tion of  public  works  or  of  private  operations  carried  on  upon  the  lands  of 
others  under  statutes  authorizing  such  operations  and  providing  for  the  re- 
covery of  damages  for  the  harm  done  thereby;  as  to  the  liability  of  a  mere 
stranger,  see  Springfield  Water-works  Co:  v.  Jenkins,  62  Mo.  App.  74  (1895). 


BARCLAY   V.    ABRAHAM.  I3II 

width,  following  the  direction  of  the  creek.  Within  this  area  there 
are  at  least  eleven  wells  which  are  now  or  have  been  flowing  above 
the  earth's  surface.  That  of  plaintiff,  near  his  barn,  is  one  hun- 
dred and  fifty-two  feet  deep.  The  well  sunk  by  defendant  is  only 
one  hundred  and  seven  feet  deep,  but  on  ground  about  as  much 
lower  as  the  difference.  Its  casings  are  three  inches  in  diameter, 
and  the  flow,  when  uninterrupted,  has  the  effect  of  stopping  plain- 
tiff's well  and  of  several  others.  It  is  located  near  the  south  line 
of  defendant's  land,  from  which  the  water  runs  in  the  creek,  and, 
save  that  necessary  for  about  thirty  head  of  cattle,  is  without  ben- 
efit to  him  or  any  one  else.  The  water  in  excess  of  a  stream  one- 
fourth  inch  in  diameter,  to  which  extent  the  district  court  directed 
him  to  restrain  the  flow,  is  absolutely  wasted,  and  so  done  without 
excuse.  True,  he  pretended  that  the  entire  flow  was  essential  to  pre- 
vent clogging  with  sand  or  gravel,  but  the  evidence  shows  conclu- 
sively that  this  was  less  likely  with  the  smallest  available  exit.  Again, 
he  pretended  to  have  in  contemplation  the  elevation  to  his  tenant's 
house,  across  the  eighty  acres,  up  some  forty  feet,  of  water  for  do- 
mestic use  by  the  operation  of  a  hydraulic  ram.  But  the  extent  of 
his  preparation  therefor  was  the  reading  of  a  circular  from  some 
manufacturing  company.  There  was  no  proper  showing  that  the 
flow  permitted  would  be  inadequate  for  this  purpose,  and  it  con- 
clusively appears  that  it  had  nothing  to  do  with  his  insistency  upon 
utterly  wasting  the  water  his  neighbors  so  much  needed. 

But  the  presumption  obtains  that  such  waters  are  percolating 
waters,  unless  shown  to  be  supplied  by  a  stream  of  known  and 
defined  channel.  Gould  on  Waters,  sections  280,  281  ;  Hanson  v. 
McCiie,  42  Cal.  303 ;  Tampa  Watenvorks  Co.  v.  dine,  37  Fla. 
586 ;  Metcalf  v.  Nelson,  8  S.  D.  87 ;  Wheatley  v.  Baugh,  25  Pa.  528 ; 
Hiiber  v.  Merkel,  iiy  Wis.  355.  And  it  follows  that  the  burden  of 
proof  is  upon  those  asserting  right  to  waters  below  the  surface,  on 
the  ground  that  they  flow  in  a  defined  and  known  channel,  to  estab- 
lish the  existence  of  such  channel.  Black  v.  Ballymena  Com'rs.,  17 
L.  R.  Ir.  459 ;  Huber  v.  Merkel,  supra.^     There  is  nothing  in  the 


^  "It  is  to  be  observed  that  the  mere  existence  of  the  channel  is  not 
enough;  its  location  must  be  known  or  reasonably  ascertainable.  Lybe's  Ap- 
peal, 106  Pa.  St.  626;  Collins  v.  Chartiers  Valley  Gas  Co.,  131  Pa.  St.  143. 
where  the  court  concludes  that  it  is  clear,  'from  the  principles  and  reasoning  of 
all  the  cases,  that  the  distinction  between  rights  in  surface  and  in  subterranean 
waters  is  not  founded  on  the  fact  of  their  location  above  or  below  the 
ground,  but  on  the  fact  of  knowledge,  actual  or  reasonably  acquirable, 
of  their  existence,  location,  and  course.'  And  in  Black  v.  Ballymena  Com'rs, 
17  L.  R.  Ir.  459:  'So  far  the  law  on  the  subject  is  clear;  but  a  difficulty  ap- 
pears still  to  exist  as  to  the  application  of  this  rule  by  reason  of  the  use  of 
the  word  "known"  in  connection  with  the  word  "defined,"  and  it  does  not  seem 
to  have  been  laid  down  as  yet  what  the  nature  or  extent  of  the  knowledge  is 
which  must  be  proved  to  exist  in  order  to  constitute  the  riparian  relations. 
It  cannot  mean  that  a  channel  should  be  visible  throughout  its  course,  which 
would  be  an  impossibility,  from  the  very  fact  of  its  being  subterranean.  In 
considering  the  question,  the  knowledge  required  cannot  be  reasonably  held 
*o  be  that  derived  from  a  discovery  in  part  by  excavation  exposing  the  chan- 
nel, but  must  be  knowledge  by  reasonable  inference  from  existing  and  ob- 
served facts  in  the  natural,  or,  rather,  the  pre-existing,  condition  of  the  sur- 


13 12  BARCLAY    V.    ABRAHAM. 

record  to  overcome  the  presumption  that  the  supply  of  the  entire 
district  is  percolating  water. 

This  being  true,  there  is  no  doubt  but  defendant  had  the  right 
to  make  such  beneficial  use  of  the  water  in  the  improvement  of  his 
land  as  he  might  choose.  But  it  does  not  follow  that  he  had  the 
right  to  draw  from  this  reservoir  within  the  earth  wherein  nature 
had  stored  water  in  large  quantities  for  beneficial  purposes  merely 
to  waste  or  carry  out  a  design  to  injure  those  having  equal  access 
to  the  same  supply.  Decisions  to  the  efifect  that  percolating  waters 
are  to  be  treated  the  same  in  law  as  the  land  in  which  found,  and 
may  be  diverted,  consumed,  or  cut  ofif  with  impunity,  without  lia- 
bility for  interfering  or  destroying  the  supply,  are  numerous  in  this 
country  and  England — too  numerous  for  citation ;  but  see  Wheat- 
ley  V.  Baugh,  supra,  Mayor  &  Aldeman,  etc.,  v.  Pickles,  A.  C. 
(1895)  587,  and  Fra::ier  v.  Brozcn,  12  Ohio  St.  294.  In  the  last  of 
these  cases  the  principle  underlying  the  right  to  such  waters,  and  the 
reasons  upon  which  it  rests,  were  thus  stated:  "In  the  absence  of 
express  contract  and  of  positive  authorized  legislation,  as  between 
proprietors  of  adjoining  lands,  the  law  recognizes  no  correlative 
rights  in  respect  to  underground  waters  percolating,  oozing,  or  fil- 
trating through  the  earth ;  and  this  mainly  from  considerations  of 
public  policy :  ( i )  Because  the  existence,  origin,  movement,  and 
course  of  such  waters,  and  the  causes  which  govern  and  direct  their 
movements,  are  so  secret,  occult,  and  concealed  that  an  attempt 
to  administer  any  set  of  legal  rules  in  respect  to  them  would  be 
involved  in  hopeless  uncertainty,  and  would  be,  therefore,  practically 
impossible;-  (2)  Because  any  such  recognition  of  correlative  rights 
would  interfere,  to  the  material  detriment  of  the  commonwealth, 
with  drainage,  and  agriculture,  mining,  the  construction  of  highways 
and  railroads,  wnth  sanitary  regulations,  building,  and  the  general 
progress  of  improvement  in  works  of  embellishment  and  utility." 
An  examination  of  the  authorities,  however,  indicates  that  they 
proceed  upon  the  theory  that  the  right  thereto  relates  to  the  benefi- 
cial use  of  the  land,  and  is  connected  with  its  enjoyment  for  the 
purposes  of  agriculture,  mining,  trade,  improvement,  and  the  like. 
This  thought  is  emphasized  by  the  dicta  in  many  decisions  to  the 
effect  that  percolating  waters  may  not  be  extracted  from  the  earth 


face  of  the  ground.  The  onus  of  proof,  of  course,  lies  on  the  plaintiff  claim- 
ing the  right,  and  it  Hes  upon  him  to  show  that  without  opening  the  ground 
by  excavation,  or  having  recourse  to  abstruse  speculations  of  scientific  per- 
sons, men  of  ordinary  powers  and  attainments  would  know,  or  could  with 
reasonable  diligence  ascertain,  that  the  stream  when  it  emerges  into  light 
comes  from  and  has  flowed  through  a  defined  subterranean  channel."  Sur- 
face indications  of  a  stream  are  discussed  in  Tampa  JVaferzvorks  Co.  v.  Cline, 
37  Fla.  586,  where  surface  depressions  extended  on  either  side  of  a  spring: 
in  Hale  v.  McLea,  53  Cal.  578,  where  a  line  of  bushes  usually  found  nowhere 
except  over  water  courses  extended  from  a  sprinp-  on  adjoining  land." 

'■  But  see  Ballard  v.  Tomliiison  and  Collins  v.  Chartier's  Valley  Gas  Co., 
Note  1  to  Bradford  v.  Pickles,  ante,  p.  1306. 


BARCLAY   r.    ABRAHAM.  I3T3 

to  the  injury  of  others  merely  to  gratify  malice.  Thus,  in  the 
leading  case  of  IVheatley  \.  Baiiyh,  the  court  declared  that  "neither 
the  civil  law  nor  the  common  law  permits  a  man  to  be  deprived  of 
a  well  or  spring  or  stream  of  water  for  the  mere  gratification  of 
malice.  The  reason  is  that  water,  like  air,  is  of  such  a  nature  that 
no  one  can  have  an  exclusive  right  in  it.  In  the  process  of  evapora- 
tion and  condensation  it  is  sent  in  refreshing  showers  all  over  the 
earth.  In  its  descent  into  the  ocean  it  necessarily  passes  from  one 
to  the  other,  and  is  intended  for  the  benefit  of  all.  The  right  of 
each  is  more  or  less  dependent  upon  that  of  his  neighbor."^  See, 
also,  Greenleaf  v.  Francis,  i8  Pick.  119,  where  it  was  held  that  an 
owner  may  dig  a  well  in  any  part  of  his  land,  even  though  the  water 
in  his  neighbor's  well  be  diminished,  but  with  this  limitation,  that 
in.  doing  so  he  is  not  actuated  by  a  malicious  intent  to  deprive  his 
neighbor  of  water  without  benefit  to  himself.*  The  right  being 
conceded,  possibly  the  intent  with  which  exercised  would  be  im- 
material. On  this  point  the  authorities  are  in  conflict.  See  Chesley 
V.  King,  74  Me.  164  (43  Am.  Rep.  569)  ;  Huher  v.  Merkel,  (Wis.) 
94  N.  W.  Rep.  354. 

The  doctrine  of  correlative  rights  between  landowners  respect- 
ing the  appropriation  and  use  of  percolating  waters  has  been 
broadly  applied  in  New  Hampshire  (Bassett  v.  Salisbury  Mfg.  Co., 
43  N.  H.  569  ;  Sivett  v.  Ciitts,  50  N.  H.  439 ) ,  where  the  court  declared 
that  no  good  reason  could  be  given  why  it  should  not  be  applicable 
in  all  cases  where  the  rights  of  owners  of  adjoining  lands  to  col- 
lect and  use  percolating  waters  are  in  apparent,  though  not  real 
hostility.  The  courts  of  New  York  seem  to  have  held  that  the  owner 
of  land  may  not  sink  wells  on  his  own  land  from  which,  by  the  use 
of  pumps  of  potential  force  and  reach,  he  may  drain  the  percolating 
waters  from  the  premises  of  his  neighbors  to  their  injury,  merely 
for  the  purpose  of  merchandising  the  water  to  consumers  distant 


^  The  dictum  is  cited  with  approval  in  Miller  v.  Black  Rock  etc.  Co., 
99  Va.  747  (1901),  and  in  many  of  the  later  Pennsylvania  cases,  Haldeman 
V.  Briickhart,  45  Pa. -514  (1863);  Lybe's  Appeal,  106  Pa.  St.  626  (1884); 
Williams  v.  Ladew,  161  Pa.  St.  283  ( 1894)  ;  but  in  all  of  them  it  was,  as  in 
IVheatley  v.  Baugh,  mere  dictum,  the  acts  done  by  the  defendant  being  clearly 
appropriate  to  and  intended  for  the  improvement  and  development  of  his  own 
property.     But  see  Hague  v.  Wheeler,  157  Pa.  St.  324  (1893). 

*  The  actual  language  used  is  "unless  in  so  doing"  (digging  tlie  well  which 
diminishes  the  water  in  the  plaintiff's  well)  "he  is  actuated  by  mere  malicious 
intent  to  deprive  his  neighbor  of  water" ;  this  is  quoted  with  approval  in 
Roath  v.Driscoll,  20  Conn.  533  (1850):  in  Chesley  v.  King,  74  Maine  164 
(1882),  it  is  said  that  while  the  plaintiff's  rights  in  the  spring  in  question 
"were  completely  subject  to  the  defendant's  right  to  consult  his  own  con- 
venience and  advantage  in  the  digging  of  a  well  in  his  own  land  for  the 
better  supply  of  his  own  premises  with  water",  they,  "should  not  be  ignored 
if  it  were  true  that  the  defendant  did  it  for  the  mere,  sole  and  malicious 
purpose"  of  cutting  off  the  sources  of  the  spring  and  injuring  the  plaintiff, 
and  not  for  the  improvement  of  his  own  estate;  in  Wyandot.  Club  Co.  v.  Sells. 
See  also,  Springfield  Water-works  Co.  v.  Jenkins,  62  Mo.  App.  74  (1895),  p. 
82;  Gagnon  v.  French  Lick  Springs  Hotel  Co.,  163  Ind.  687  (1904),  p.  696; 
and  Louisville  Gas  Co.  v.  Kentucky  Heating  Co.,  117  Ky.  71   (1903). 


I314  BARCLAY   V.   ABRAHAM. 

from  the  land.  Forhell  v.  City  of  Nezv  York,  164  N.  Y.  522.^  In 
that  case  it  was  said:  "In  the  absence  of  contract  or  enactment, 
whatever  it  is  reasonable  for  the  owner  to  do  with  his  sub-surface 
water,  regard  being  had  to  the  definite  rights  of  others,  he  may  do. 
He  may  make  the  most  of  it  that  he  reasonably  can.  It  is  not  unrea- 
sonable, so  far  as  it  is  now  apparent  to  us,  that  he  should  dig  wells, 
and  take  therefrom  all  the  water  that  he  needs,  in  order  to  the  fullest 
enjoyment  and  usefulness  of  his  land  as  land,  either  for  purposes  of 
pleasure,  abode,  productiveness  of  soil,  trade,  manufacture,  or  for 
whatever  else  the  land  as  land  may  serve.  He  may  consume  it,  but 
must  not  discharge  it  to  the  injury  of  others.  But  to  fit  it  up  with 
wells  and  pumps  of  such  pervasive  and  potential  reach  that  from 
their  base  the  defendant  can  tap  the  water  stored  in  the  plaintiff's 
land,  and  in  all  the  region  thereabout,  and  lead  it  to  his  own  land, 
and  by  merchandising  it  prevent  its  return,  is,  however  reasonable 
it  may  appear  to  the  defendant  and  its  customers,  unreasonable  as  to 
the  plaintiff  and  others  whose  lands  are  thus  clandestinely  sapped, 
and  their  value  impaired."  The  opinion  seems  to  be  grounded  upon 
the  notion  that  extracting  the  water  by  force  constituted  a  trespass, 
and  the  court,  apparently  in  recognizing  a  departure  from  previous 
decisions,  added :  "We  more  readily  conclude  to  affirm  because  the 
immunity  from  liability  which  defendant  claims  violates  our  sense 
of  justice.     It  seems  to  pervert  just  rules  to  unjust  purposes.     It 


''Accord:  Hathorn  v.  Natural  Carbonic  Gas  Co.,  194  N.  Y.  326  (1909). 
where  emphasis  is  laid  upon  the  powerful  artificial  means  to  monopolize 
the  common  source  of  supply  and  upon  the  fact  that  the  use  for  which  the 
water  was  appropriated,  the  extraction  of  carbonic  acid  for  sale,  was  un- 
connected with  the  improvement  and  enjoyment  of  tlie  land. 

As  to  the  use  of  artificial  means  to  secure  a  share  of  subjacent  water, 
oil  or  gas,  greater  than  would  flow  naturally  to  the  defendant's  well,  com- 
pare Manufacturers'  Gas  &c.  Co.  v.  Indiana  Nat.  Gas  &c.  Co.,  155  Ind.  461 
(1900),  holding  wrongful,  with- /o»^^  v.  Forest  Oil  Co.,  194  Pa.  St.  379 
(1900),  holding  lawful,  the  use  of  gas  pumps  of  a  sort  customarily  used  and 
which  by  their  low  cost  are  within  the  reach  of  all  well  owners ;  and  see 
Richmond  Nat.  Gas  Co.  v.  Enterprise  Nat.  Gas  Co.,  31  Ind.  App.  222  (1903). 
The  appropriation  of  sub-surface  water  for  a  use  not  incidental  to  the 
development  of  the  land  which  it  underlies,  is  regarded  as  unlawful  in 
Kat3  v.  Walkinshaw,  141  Cal.  116  (1903),  water  pumped  from  the  land 
piped  to  a  distant  reservoir  and  sold;  Cohen  v.  LaCanada  Land  &c.  Co.,  142 
Cal.  437  (1904);  Gagnon  v.  French  Lick  Springs  Hotel  Co.,  163  Ind.  687 
(1904)  ;  Hathorn  v.  Carbonic  Gas  Co.,  194  N.  Y.  326  (1909)  ;  see  also,  Willis 
V.  Perry,  92  Iowa  297  (1894),  city  using  water  of  a  "subterranean  strearn" 
for  the  supply  of  its  inhabitants;  contra,  Huber  v.  Merkel.  117  Wis.  355 
(1903),  and  Meeker  v.  East  Orange,  76  N.  J.  L.  435  (1908),  p.  441,  and  see 
Stillwater  Water  Co.  v.  Farmer,  89  Minn.  58  (1903),  dubifante,  compare 
Szmndon  Waterworks  Co.  v.  Wilts  and  Berks  Canal,  L.  R.  7  Eng.  &  Irish 
App.  Cas.  697  (1875),  and  Scranton  Gas  &  Water  Co.  v.  Delaware,  L. 
&  IV.  R.  Co.,  240  Pa.  St.  604  (1913),  holding  that  riparian  owners  have  as 
such  no  right  to  carry  off  water  from  the  stream  for  sale  or  use  outside  their 
riparian  land.  The  tendency  of  the  later  cases  is  to  assimilate  the  rights 
of  landowners  to  appropriate  the  sub-surface  water  or  to  divert  it  or  ob- 
struct its  flow  to  adjoining  land  to  the  similar  rights  of  riparian  owners  to 
use,  detain  or  divert  the  water  of  a  defined  surface  stream ;  see  Louisville 
Gas  Co.  v.  Kentucky  Heating  Co..  117  Kv.  71  (1903),  p.  78;  Bassett  v.  Salis- 
bury Mfg.  Co.,  43  N.  H.  569  (1862),  and  see  Katz  v.  Walkinshaw,  141  Cal. 
116   (1903). 


BARCLAY   v.    ABRAHAM.  I315 

does  wrong  under  the  letter  of  the  law,  in  defiance  of  its  spirit." 
Smith  V.  City  of  Brooklyn,  14  App.  Div.  340  (N.  Y.  1897),  is  re- 
ferred to  approvingly.  In  that  case,  upon  full  consideration,  the 
court  declared  that,  while  waters  might  be  extracted  from  the  depths 
for  the  reasonable  use  or  improvement  of  the  land,  the  law  will  not 
allow  this  to  be  done  for  some  purpose  unconnected  with  the  use, 
improvement,  or  enjoyment  of  the  land  itself  to  the  detriment  of 
adjoining  owners.     See  same  case  on  appeal  (160  N.  Y.  367). 

It  is  not  necessary  to  go  to  this  extent  in  order  to  sustain  the 
decree  in  this  case.  The  water  from  defendant's  well,  in  excess  of 
that  allowed  him  by  the  court,  fell  to  the  earth,  and  immediately 
flowed  from  his  land  on  that  of  a  neighbor  below.  He  proposed  to 
draw  the  percolating  waters,  not  to  supply  the  people  of  a  great 
city,  but  to  waste  without  advantage  to  any  one.  In  principle  the 
case  is  like  that  of  Stilhvater  Water  Co.  v.  Farmer,  (^Nlinn.)  93 
N.  W.  Rep.  907,  and  we  are  inclined  to  approve  the  doctrine  therein 
announced.  There  the  plaintiff  supplied  water  for  domestic  pur- 
poses to  the  people  of  the  city  of  Stillwater  from  a  spring  about 
which  it  had  constructed  a  wall  some  six  feet  in  diameter.  This  was 
within  a  few  feet  from  the  boundary  line  between  the  company's  and 
Farmer's  land.  Near  this  line,  and  not  more  than  ten  feet  from  the 
center  of  the  spring.  Farmer  excavated  a  trench,  and  placed  in  it  a 
ten-inch  tile  drain  connected  with  the  city  sewer.  As  a  result  perco- 
lating waters  were  drawn  away  from  the  spring,  where  they  would 
naturally  have  gone,  materially  affecting  the  supply  of  water  in  the 
spring.  Thereupon  the  company  made  a  change  in  the  outlet  and  in 
the  mains  to  guard  against  such  loss ;  whereupon  Farmer  began  to 
lay  his  tile  at  a  lower  level,  commencing  at  the  sewer.  A  temporary 
injunction  was  granted,  and  in  a  well-considered  opinion  the  court 
held  that  defendant  might  not  even  collect  percolating  waters  merely 
to  squander  them  to  the  detriment  of  his  neighbor.  The  theory  of 
the  decision  is  that,  while  ownership  of  the  soil  extends  to  the  center 
of  the  earth,  it  is  somewhat  restrained  by  the  maxim,  "Sic  iitcre  tiio 
ni  alienum  non  laedas."  The  court  directs  attention  to  the  fact  that 
in  nearly  every  case  where  the  right  to  collect  or  divert  percolating 
waters  has  been  upheld  this  has  been  for  some  beneficial  purpose, 
and  pertinently  suggests  that  there  is  no  good  reason  for  not  apply- 
ing the  doctrine  of  correlative  rights  in  such  a  case,  and  that  such 
application  will  not  interfere  with  proper  improvement  of  land,  but 
tend  to  promote  the  general  welfare  of  all  citizens  alike.  The  rule  ap- 
proved is  thus  stated  :  "Except  for  the  benefit  and  improvement  of  his 
own  property  or  for  his  own  beneficial  use,  the  owner  of  land  has  no 
right  to  drain,  collect  or  divert  percolating  waters  thereon,  when 
such  acts  will  destroy  or  materially  injure  the  spring  of  another  per- 
son, the  waters  of  which  spring  are  used  by  the  general  public  for 
domestic  purposes.  He  must  not  drain,  collect,  or  divert  such 
waters  for  the  sole  purpose  of  wasting  them.  Briefly  stated,  a  land- 
owner must  not  collect  and  wantonly  waste  percolating  waters, 
which  would*  otherwise  be  or  have  theretofore  been  appropriated 
by  his  neighbor    for    the    general    welfare    of    the    people."     A 


I316  BARCLAY    7'.    ABRAHAM. 

contrary  conclusion  would  permit  defendant  by  allowing  his  well 
to  flow  at  full  capacity,  not  only  to  stop  plaintiff's  well,  but 
every  other  well  in  the  nei.qhborhood,  and  this  without  the 
slightest  benefit  to  himself.  Indeed,  this  is  precisely  what  he  has 
threatened  if  interfered  with.  ]\Iay  one  man  thus  waste  the  waters 
stored  by  nature  for  the  community  and  wantonly  deprive  it  of 
their  use?  Are  the  courts  powerless  to  remedy  such  a  wrong? 
The  Supreme  Court  of  Wisconsin  seems  to  have  so  held.  Hitber  w 
Merkel,  supra.  A  distinction  between  an  injury  to  the  quality  of 
the  neighbor's  land,  as  in  Forbell  v.  City  of  Nezu  York,  and  to  the 
enjoyment  of  its  use,  is  suggested,  but  this  is  not  substantial.  See, 
also,  Hague  v.  Wheeler,  157  Pa.  St.  324.  Certainly  no  good  reason 
can  be  found  for  allowing  the  owner  of  land  to  draw  sub-surface 
water  therefrom  merely  to  waste,  when  this  results  in  draining  like 
water  from  his  neighbor's  land,  to  his  detriment  in  its  use  and  enjoy- 
ment. Water  moves  so  readily  from  one  place  to  another  that  any 
definite  portion  of  it  cannot  be  said  to  be  the  property  of  the  owner 
of  the  soil  until  in  some  way  reduced  to  control.  The  water  flow- 
ing in  defendant's  well  may  have  been  from  plaintiff's  land  or  that 
of  some  other  well-owner  a  moment  previous.  In  this  respect  it 
dififers  from  minerals  beneath  the  surface,  and  is  more  like  natural 
gas,  which  may  not  be  allowed  to  escape  by  a  landowner,  when  not 
made  use  of,  to  the  detriment  of  his  neighbors.  Ohio  Oil  Co.  v.  In- 
diana, 150  Ind.  689;  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  190. 

Possibly  he  may  waste  that  on  his  own  land,  if  he  can  do  so 
without  draining  water  from  his  neighbor's.  But  the  source  of  the 
supply  of  percolating  waters  can  seldom  be  determined,  and  this  is 
one  of  the  main  reasons  for  permitting  its  free  appropriation  by  the 
owner  of  the  soil.  A  different  rule  would  Undoubtedly  restrict  the 
use  and  improvement  of  land.  But  the  prevention  of  carrying  the 
water  from  the  land  of  the.  owner  for  the  purposes  of  commerce  or 
waste  cannot  retard  the  improvement  of  the  land  itself,  and  there 
is  no  just  ground  for  tolerating  such  diversion  when  the  direct  re- 
sult is  to  deprive  the  adjoining  landowners  by  the  incidental  drain- 
age of  their  land  of  a  supply  of  water  from  the  same  natural  reser- 
voir. This  would  be  extracting  the  subterranean  water  from  the 
adjoining  land  to  its  injury,  without  any  counter  benefit  to  the  land 
through  which  taken.  This  is  a  stronger  case  for  the  interference 
of  a  court  of  equity  than  Forbell  v.  City  of  New  York.  There  the 
drainage  rendered  the  adjoining  land  unfit  for  the  growth  of  water 
cresses,  which  had  formerly  been  raised  upon  it ;  here  it  destroyed 
the  water  supply  essential  for  its  customary  use  and  enjoyment. 
There  the  drainage  was  to  secure  water  to  distribute  to  the  inhab- 
itants of  a  great  city  for  profit ;  here  the  object  was  to  turn  it  into 
a  creek  to  flow  unused  in  any  way  down  to  another's  land  below. 
The  soundness  of  some  of  the  reasoning  of  the  Forbell  Case  may  well 
be  doubted.  The  exertion  of  the  force  there  was  in  the  removal  of 
the  subterranean  waters  in  the  city's  land,  and  the  only  suction  oc- 
casioned was  by  emptying  a  cavity  into  which  the  water  naturally 
drained  from  the  surrounding  country.     It  is  at  least  exceedingly 


BARCLAY    V.    AliRAHAM.  ^31? 

doubtful  whether  this  constituted  trespass.  In  a  lesser  degree  this 
happens  whenever  the  sinking  of  one  well  has  the  effect  of  drying 
up  another.  The  doctrine  of  Smith  v.  City  of  Brooklyn,  that  the 
free  use  of  such  waters  is  limited  to  the  improvement,  use,  and  en- 
joyment of  the  land  from  which  taken,  and  cannot  be  carried  away 
for  the  purposes  of  commerce,  to  the  injury  of  the  premises  of  an 
adjoining  owner,  has  the  better  reason  for  its  support.  But  we 
need  not  go  this  far,  even  to  sustain  the  decree  of  the  district  court, 
as  in  the  case  at  bar  the  owner  derived  no  benefit -from  the  sale  or 
use  of  the  water.  As  said,  the  case  is  in  principle  like  Stilkvater 
W'atcr  Co.  v.  Farmer,  supra.  The  doctrine  there  announced  is  in 
harmony  with  good  morals.  It  interferes  with  no  valuable  right  of 
the  defendants.  It  shields  from  destruction  property  rights  of 
great  value  belonging  to  the  plaintiff  and  others.  It  goes  no  farther 
than  to  say  that  a  landowner  may  not  collect,  drain,  or  divert  waters 
percolating  through  the  earth  merely  to  carry  from  his  own  land 
for  no  useful  purpose,  when  such  action  on  his  part  will  have  the 
effect  of  materially  injuring  or  destroying  the  well  or  spring  of  an- 
other, the  waters  of  which  are  devoted  to  some  beneficial  use  con- 
nected with  the  land  where  found.  It  applies  in  principle  the  doc- 
trine of  correlative  rights  to  the  control  of  sub-surface  waters  when- 
ever the  appropriation  proposed  is  unconnected  with  the  use,  en- 
joyment, or  improvement  of  the  land  from  which  taken. 

Affirmed. ° 
Deemer,  J.,  concurs  in  result. 


WYANDOT  CLUB  CO  r.  A.  C.  SELLS. 
Court  of  Common  Picas,  Ohio,  1895.     3  Ohio  Nisi  Prius  Rep.  210. 

PuGH,  J.     The  question  raised  by  the  demurrer  to  the  plaintiff's 
amended  petition  is  identical  with  that  which  is  raised  by,  and  de- 

"  In  the  following  cases  the  waste  of  water,  gas  or  oil  was  held  wrong- 
ful, Stillzvater  Water  Co.  v.  Fanner.  89  Minn.  58  (1903)  ;  Springfield  Water- 
works Co.  V.  Jenkins,  62  Mo.  App.  74  (1895)  ;  Gagnon  v.  French  Lick  Springs 
Hotel  Co.,  163  Ind.  687  (1904)  ;  Louisville  Gas  Co.  v.  Kentucky  Heating  Co., 
117  Ky.  71  (1903)  ;  contm,  Hubcr  v.  Mcrkel,  117  Wis.  355  (1903)  ;  Hague  v. 
Wheeler,  157  Pa.  St.  324  (1803);  in  all  of  thcsC  except  the  first  the  object 
was  to  force  the  plaintiff  to  buy  up  the  defendant's  land,  to  take  him  into  his 
enterprise,  or  to  rid  the  defendant  of  the  plaintiff's  competition. 

^  In  Bassett  v.  Salisbury  Mfg.  Co..  43  N.  H.  569  (1862),  the  flow  of  plain- 
tiff's sub-surface  water  was  impeded  by  the  defendants'  erection  of  a  mill- 
dam  and  the  consequent  creation  of  a  mill-pond,  it  was  held  that  this  inter- 
ference was  actionable  unless  caused  by  the  reasonable  use  of  the  defendants' 
own  land  or  privilege  of  erecting  the  dam,  which  was  said  to  be  a  mixed 
question  of  law  and  fact ;  as  to  the  factors  to  determine  what  is  a  reasonable 
use  in  New  Hampshire,  see  the  editor's  article  on  "The  Rule  in  Rvhnids  v. 
Fletcher."  59  U.  P.  L.  R.  4,  and  59  Am.  L.  Reg.  373  (1911),  pp.  382-383. 

In  Hnber  v.  Merkcl,  117  Wis.  355  (1903)  (O.  S.),  a  statute  making  the 
owner  of  an  artesian  well  who  permits  the  discharge  of  more  water  than  is 
reasonably  necessary  for  his  use  liable  to  the  owner  of  another  well  whose 
flow  is  thereby  diminished,  was  held  unconstitutional  as  taking  private  prop- 
erty for  private  use  without  compensation:  contra.  Ohio  Oil  Co.  v.  Indiana, 
177  U.  S.  190  (1899) ;  Hague  v.  Wheeler,  157  Pa.  St.  324  (1893),  seuible. 


I3T8  WYANDOT    CLUB    CO.    V.    SELLS. 

cided  on,  the  demurrer  to  the  original  petition,  the  decision  having 
been  rendered  by  Judge  Badger. 

The  complaint  is,  that  the  defendant,  by  digging  a  hole  within 
a  few  feet  of  the  plaintiff's  line,  diverted  the  water  from  a  definite 
and  well  known  channel  under  the  plaintiff's  land,  which  flowed  into 
a  spring  on  its  land,  and  abstracted,  prevented  and  intercepted  the 
flow  of  said  water,  which  ought  to  have  flowed  into  the  plaintiffs' 
said  spring.  It  is  charged  that  the  defendant  was  actuated  by  un- 
mixed malice,  and  that  his  purpose  was  neither  for  the  ornament  or 
use  of  his  own  lands,  which  adjoined  the  plaintiff's'  lands. 

From  such  an  examination  and  study  as  I  was  able  to  give 
the  pertinent  authorities,^  I  extract  this  rule,  or  exception  to  a  rule : 

If  the  proprietor  of  lands  by  digging  a  well,  or  making  any 
other  excavation,  on  his  own  lands,  withdraws  water  from  the  spring 
on  the  neighboring  proprietor's  land,  which  has  either  percolated 
into  it  through  the  former's  land,  or  flowed  into  it  by  well  de- 
fined and  well  known  subterranean  streams  or  currents, — currents 
or  streams  coursing  through  and  under  the  former's  land,  and  if 
he  does  that,  not  for  the  purpose  of  accommodating  or  benefiting 
himself  or  others,  but  for  the  purpose  of  injuring  the  neighboring 
proprietor,  or,  in  other  words,  if  in  doing  it  he  is  actuated  by  pure 
and  unalloyed  malice  towards  the  latter,  he  is  answerable  for  the 
damages   sustained  by  his   neighbor. 

The  amended  petition  shows  facts,  which  bring  the  case  within 
the  application  of  the  exception  to  the  rule,  which  I  have  thus  ex- 
tracted from  the  authorities ;  and  it  is,  therefore,  not  vulnerable  to 
the  demurrer. 


BADOIT  V.  ANDRE. 

Court  of  Lyons,  1856.    Dalloz,  1856,  Part  2,  p.  199. 

The  Court: — On  the  question  of  responsibility;  Considering  that  it  has 
been  proved  that  the  mineral  spring  of  Badoit  and  that  of  the  Andre  partner- 
ship, are  only  three  meters  apart  from  each  other  and  are  only  at  a  few 
meters  from  the  mineral  spring  belonging  to  the  commune  of  Saint-Galmier ; 
— Considering  that  the  great  proximity  of  the  three  springs  must  make  it  an 
admitted  fact,  agreeing  with  the  facts  found  by  the  medical  inspector  of 
the  springs,  that  they  communicate  with  each  other,  either  by  infiltration  or 
by  arising  from  a  common  water  shed  or  reservoir; — Considering  that  it  re- 
sults from  the  documentary  evidence  in  the  case :  first  that  it  was  with  the 
intention  to  injure  Badoit  that  the  Andre  partners  had  pumps  placed  at  the 
well  of  their  spring;  second  that  the  use  of  this  pump  causes  a  diminution 
of  two-thirds  of  the  water  of  the  Badoit  spring  and  a  lowering  in  the  level 
of  the  water  of  the  spring  belonging  to  the  commune;  third  that  the  Andre 
partners  do  not  utilize  in  any  way  the  surplus  of  mineral  water  obtained  by 
the  use  of  their  pump  or  run  it  off  into  the  Coise; — Considering  that  these 


^Haldeman  v.  Bruckhart,  45  Pa.  514;  Wheatley  v.  Batigh,  25  Pa.  528 
(1855);  Parker  v.  Boston  &  M.  R.  Co.,  3  Cush".  107  (Mass.  1849);  PI  clp.^ 
V.  Nowlen,  72  N.  Y.  39  (1878)  ;  Chesley  v.  King,  74  Maine  164  (1882). 


BADOIT   V.    AXDRE.  13 19 

facts  convince  the  court  that  the  hjdraulic  apparatus  of  the  Andre  partners 
has  been  a  means  employed  solely  for  the  purpose  of  withdrawing  from  the 
neighboring  property  by  reason  of  the  existing  communication  between  the 
two  springs,  the  greater  part  of  the  mineral  water  supplied  to  the  Badoit 
spring  and  for  the  purpose  of  running  it  off  into  the  river; — Considering  that 
for  that  reason,  the  difficulty  is  one  of  an  undertaking  affecting  the  waters 
of  neighboring  land  and  that  this  act  accomplished  with  no  other  purpose  than 
to  injure,  has  resulted  in  damage,  of  which,  under  the  terms  of  article  1382, 
the  others  owe  reparation ; 

Considering  that  the  Andre  partners  cite  ineffectually  the  maxim  nemo 
injuria  facit  qui  jure  sno  utitur,  raising  the  defense  that  they  may  use  their 
spring  at  will  and  that  in  this  respect  their  right  of  property,  under  article 
544  of  the  Civil  Code,  is  absolute,  and  that  this  right  includes  even  that  of 
abusing  the  object  of  ownership; — Considering,  in  regard  to  the  defense  thus 
raised,  that  the  right  of  the  owner  of  necessity  is  limited  by  the  obligation 
of  allowing  one's  neighbor  to  enjoy  also  his  property;  that  the  power  to 
abuse  the  object  of  one's  ownership  cannot  serve  to  color  the  nature  of  an 
act,  which,  inspired  exclusively  by  the  desire  to  injure,  assumes,  by  reason  of 
a  subterranean  communication  between  the  two  pieces  of  land,  the  character 
of  an  undertaking  afifecting  the  neighboring  land,  affecting  its  very  substance 
and  destroying  or  lessening  a  natural  advantage,  which  is  in  fact  its  principal 
value;  that  such  an  act  rationally  viewed  in  the  light  of  the  rule  malitiis  non 
est  indulgcndum,  constitutes  one  of  the  cases  of  quasi-torts  covered  by  ar- 
ticle 1382.^ 


^  See  note  6  to  Barger  v.  Barringer,  ante,  p.  1293. 


1320  IIAM.MKRS.Mri'fl     \C.    R.    CO.    7'.    BRAND. 

CHAPTER  VI. 


Acts  Directed  or  Permitted  by  Legislative  Enactment. 


HAMMERSMITH,  &c.  RAILWAY  CO.  v.  BRAND. 

House  of  Lords,  1869.     L.  R.  1869-70,  4  Eng.  &  Ir.  App.  Cases,  171. 

Mr.  Justice  Blackburn  : 

My  Lords, — I  have  come  to  the  conclusion  that  the  plaintiffs 
below  have  no  right  to  compensation  for  the  vibration  mentioned  in 
the  special  case.  I  need  not  say  that  finding  I  stand  alone  amongst 
the  Judges  consulted  by  your  Lordships,  I  give  this  opinion  with 
diffidence.    My  reasons  are  as  follows : — 

I  think  it  is  agreed  on  all  hands  that  if  a  person,  not  authorized 
by  Act  of  Parliament  so  to  do,  erected  a  railway  or  any  other  pri- 
vate road  on  his  land,  and  then  worked  it  by  running  locomotives 
or  trains,  or  any  other  species  of  carriages,  upon  it,  so  that  the 
vibration  and  noise  were  to  such  an  extent  as  really  to  be  annoying 
to  a  neighbor,  that  injury  would  be  a  nuisance, -and  that  neighbor 
would  have  a  fresh  cause  of  action  against  the  maintainer  of  the 
way  every  time  that  the  way  was  so  worked  as  to  give  rise  to  the 
nuisance,  and  he  might,  I  apprehend,  obtain  an  injunction  to  pre- 
vent the  continuance  of  the  nuisance.  But  if,  instead  of  making 
and  maintaining  a  private  wa}^  of  his  own,  the  owner  of  the  land 
dedicated  it  as  a  public  highway,  and  the  public  brought  traffic  on 
it  to  such  an  extent  that  the  noise  and  vibration  seriously  affected 
the  neighbors,  I  apprehend  they  would  be  without  remedy.  The 
common  law  would  leave  them  suffering  a  private  hardship  for  the 
public  benefit. 

This  distinction  may  have  some  bearing  on  the  construction  of 
the  statutes  (8  Vict.  c.  i8,  and  8  Met.  c.  20),  on  the  true  meaning  of 
which  I  think  the  present  case  depends. 

And  I  think  that  it  is  agreed  on  all  hands  that  if  the  Legisla- 
ture authorizes  the  doing  of  an  act  (which  if  unauthorized  would 
be  a  wrong  and  a  cause  of  action)  no  action  can  be  maintained  for 
that  act,  on  the  plain  ground  that  no  Court  can  treat  that  as  a 
wrong  which  the  legislature  has  authorized,  and  consequently  the 
person  who  has  sustained  a  loss  by  the  doing  of  that  act  is  without 
remedy,  unless  in  so  far  as  the  legislature  has  thought  it  proper  to 
provide  for  compensation  to  him.  He  is,  in  fact,  in  the  same  po- 
sition as  the  person  supposed  to  have  suft'ered  from  the  noisy 
traffic  on  a  new  highway  is  at  common  law,  and  subject  to  the  same 
hardship.    He  suffers  a  private  loss  for  the  public  benefit. 

Now  the  legislature  has  thought  fit  to  authorize  the. defendants 
to  make  a  railway,  and  by  8  Vict.  c.  20,  s.  86,  "to  use  and  employ 
locomotive  engines   and   other  moving  power,   and   carriages   and 


IIAM^n-:RSMITH   .kc.  r.  co  f.  t.rakd.  1321 

wagons  to  be  drawn  or  propelled  thereby."  And  the  first  question 
is,  whether  this  is  such  a  legislative  authorization  of  the  use  of  such 
power  as  to  render  all  such  consequences  as  inevitably  attend  it  no 
longer  wrongful. 

If  this  were  a  new  matter  I  should  think  there  was  a  great  deal 
in  what  is  thrown  out  by  Baron  Bramwell  in  his  judgment  in  the 
Exchequer  Chamber  in  this  case ;  but  the  contrary  was  held  in  Rex 
V.  Pease,  4  B.  &  Ad.  30,  so  long  ago  as  1832,  and  acted  on  in  Vanghan 
V.  The  Taff  Vale  Raikvay  Company,  5  H.  &  N.  679.  And  if  your 
Lordships  were  to  reverse  those  decisions  the  consequence  would  fol- 
low that  any  owner  of  a  house  or  field  so  adjacent  to  a  railway 
that  the  inevitable  disturbance  from  the  working  of  the  line 
amounted  to  a  nuisance  might  (at  least  where  the  railway  has  not 
been  opened  for  twenty  years)  stop  the  working  of  the  line.  So 
large  an  amount  has  been  invested  in  the  belief  that  the  trains  might 
be  run,  even  though  some  mischief  to  others  was  inevitable,  that  I 
think  your  Lordships  will  hold  that  even  if  the  principle  of  Rex  v. 
Pease  was  originally  an  error,  it  has  long  become  communis  error, 
and  ought  to  be  held  to  have  made  the  law. 

I  come,  therefore,  to  the  conclusion  that,  but  for  the  statutes, 
the  plaintiffs  would  have  had  a  right  of  action  for  the  vibration 
arising  from  the  working  of  the  defendant's  line,  and  that  the  stat- 
utes have  taken  away  that  right  of  action.  The  question  then 
arises,  whether" the  legislature  has  given  the  plaintiffs  any  compen- 
sation ;  and  that  must  be  a  question  depending  on  the  construction 
of  the  statutes.^ 

Lord  Chelmsford  : — 

My  Lords,  this  is  a  proceeding  in  error  upon  a  judgment  of  the 
Court  of  Exchequer  Chamber  reversing  a  judgment  of  the  Court  of 
Queen's  Bench  in  favour  of  the  plaintiffs  in  error  upon  a  special 
case. 

The  question  raised  for  the  opinion  of  the  Court  below  was, 
whether  the  plaintiffs  in  the  action,  who  are  owners  of  a  house  ad- 
jacent to  the  Hammersmith  and  City  Raihvay,  were  entitled  to  com- 


*  Blackburn,  J.,  with  whom  agreed  the  majority  of  the  House  of  Lords, 
was  of  the  opinion  that  neither  the  Land  Clauses  Act  nor  the  Railway  Clauses 
Act,  expressed  an  intention  that  compensation  should  be  paid  for  such  in- 
juries, Willes,  Lush,  Bramwell,  JJ.,  and  Lord  Cairns,  diss.,  were  of  the  con- 
trary opinion.  The  majority  held  that  the  compensation  in  §  68  of  the  for- 
mer Act  for  those  whose  lands  have  been  "injuriously  affected  by  the  con- 
struction" of  the  railway,  included  only  injuries  resulting  from  the  physical 
construction  or  erection  of  the  works  and  did  not  cover  injuries  due  to  their 
operation  after  construction.  In  Pennsylvania  R.  Co.  v.  Lippincott,  116  Pa. 
St.  472  (1887),  and  Pennsylvania  R.  Co.  v.  Marchant,  119  Pa.  St.  541  (1888) 
a  similar  provision  contained  in  the  Pennsylvania  Constitution,  Sec.  8,  Art. 
16  of  1874,  was  given  a  similar  construction,  but  see  Pennsylvania,  S.  V.  R. 
Co.  V.  Walsh,  124  Pa.  St.  544  (1889),  and  IVillock  v.  Beaver  Valley  R.  Co., 
222  Pa.  St.  590  (1909).  On  the  other  hand,  similar  constitutional  provi- 
sions and  statutes  have  been  construed  to  give  compensation  for  annoy- 
ances, etc.,  to  adjacent  owners,  which,  but  for  the  legislative  authority  given 
for  the  railroad's  operations,  would  be  actionable  nuisances.  Baker  v.  Boston 
Elev.  R.  Co.,  183  Mass.  178  (1903),  though  such  operations  are  not  actionable 
as  nuisances,  Chicago,  M.  &c.  R.  Co.  v.  Darke,  148  111.  226  (1893). 


1322  HAMMERSMITH    ^C.    R.    CO.    V.    BRAND. 

pensation  from  the  railway  company  for  injury  to  their  house  from 
the  vibration  caused  by  the  passage  of  trains  over  the  Hne  in  the  or- 
dinary use  of  the  railway,  without  negligence,  whereby  the  house 
was  depreciated  in  Value  to  the  extent,  as  found  by  a  jury,  of  £272. 

It  must  be  borne  in  mind  that  this  is  not  a  case  in  which  it  was 
possible  to  claim  compensation  before  the  construction  of  the  rail- 
way, nor,  indeed,  till  after  its  workings  had  commenced,  because 
till  then  it  could  not  be  known  whether  there  would  be  any  vibra- 
tion injurious  to  the  house  occasioned  by  the  passing  of  the  trains. 
The  simple  question,  therefore,  is,  w^hether  the  Legislature  has 
provided  compensation  for  any  damage  to  land  or  houses  not  arising 
from  negligence,  but  the  inevitable  consequence  of  the  proper  and 
ordinary  use  of  the  railway. 

Assuming  that  before  the  passing  of  their  Act  the  defendants 
would  have  been  liable  to  an  action  for  the  injury  caused  to  the 
plaintiffs'  house,  it  is  necessary  for  the  plaintiffs  in  the  first  place 
to  establish  that  the  company's  Act  has  taken  away  the  remedy  by 
action  in  order  to  open  the  way  to  their  claim  to  compensation. 

If  the  cases  of  Rex  v.  Pease,  4  B.  &  Ad.  30,  and  Vaughan  v. 
The  Taff  Vale  Raihvay  Company,  5  H.  &  N.  679,  were  rightly  de- 
cided, this  question  has  been  determined.  It  was  established  by 
those  cases  "that  when  the  legislature  has  sanctioned  the  use  of  a 
locomotive  engine  there  is  no  liability  for  any  injury  caused  by 
using  it  so  long  as  every  precaution  is  taken  consistent  with  its 
use."  Mr.  Baron  Bramwell,  in  his  answer  to  the  question  put  by 
your  Lordships  to  the  Judges,  adverting  to  the  above  cases,  said, 
"With  great  respect  I  think  those  cases  clearly  wrong,  and  that  they 
have  proceeded  on  an  inadvertent  misapprehension  of  the  object  and 
effect  of  the  clauses  in  question."  And  he  then  reasoned  in  this  man- 
ner. Law  Rep.  2  O.  B.  232 :  "The  86th  section  of  the  8  &  9  Vict. 
c.  20,  which  gives  the  company  the  right  to  be  carriers  on  their  own 
line,  is  preceded  by  a  heading  'With  respect  to  the  carrying  of  pas- 
sengers and  goods  vipon  the  railway,  and  the  tolls  to  be  taken  there- 
on;'  there  is  not  a  word  (said  the  learned  Baron)  in  this  heading  as 
to  the  legalizing  or  allowing  of  nuisances.  The  company  wanted  no 
power  to  enable  them  to  use  a  locomotive.  A  man  may  use  a  loco- 
motive on  his  soil  and  freehold,  and  so  may  a  corporation.  They 
do  not  possess  the  power  to  use  it  so  as  to  be  a  nuisance  to  their 
neighbors.  If  this  were  intended  to  be  given,  where  are  the  words? 
The  words  are  sufficient  if  meant  to  give  vires  tiltra  those  of  a  com- 
pany to  make  a  railway,  but  insufficient  if  meant  to  authorize  the  do- 
ing of  damage." 

With  great  respect  to  the  learned  Baron  we  do  not  expect  to 
find  words  in  an  Act  of  Parliament  expressly  authorizing  an  indi- 
vidual or  a  company  to  commit  a  nuisance  or  to  do  damage  to  a 
neighbor.  The  86th  section  gives  pov/er  to  the  company  to  use  and 
employ  locomotive  engines,  and  if  such  locomotives  cannot  pos- 
sibly be  used  without  occasioning  vibration  and  consequent  injury 
to  neighboring  houses,  upon  the  principle  of  law  that  "Cnicunqne 
aliquis  quid  cencedit,  concedere  videUir  et  id  sine  quo  res  ipsa  esse 


HAMMERSMITH    ikC.    R.    CO   V.    BRAND.  13^3 

non  potuit,"  it  must  be  taken  that  power  is  given  to  cause  that  vi- 
bration without  habihty  to  an  action.-  The  right  given  to  use  the 
locomotive  would  otherwise  be  nugatory,  as  each  time  a  train 
passed  upon  the  line  and  shook  the  houses  in  the  neighborhood 
actions  might  be  brought  by  their  owners,  which  would  soon  put  a 
stop  to  the  use  of  the  railway.  I  therefore  think,  notwithstanding 
the  respect  to  which  every  opinion  of  Mr.  Baron  Bramwell  is  en- 
titled that  the  cases  of  Rex  v.  Pease,  4  B.  &  Ad.  30,  and  Vauglian 
V.  The  Taff  Vale  Railway  Company,  5  H.  &  N.  679,  were  rightly 
decided. 


■Accord:  Decker  v.  Evansville  &c.  R.  Co.,  133  Ind.  493  (1892);  Duns- 
more  V.  Central  Iowa  R.  Co.,  72  Iowa  182  (1887)  ;  Atchison.  T  &  •5'.  F.  /?. 
Co.  V.  Armstrong,  71  Kans.  366  (1905);  Whitney  v.  Marine  Cent  R-  Co 
69  Maine  208  (1879)  ;  Carroll  v.  Wisconsin  Cent.  R.  Co.,  40  Minn  168  (1889)  ; 
Randle  v.  Pacific  R.  Co.,  65  Mo.  325  (1877)  ;  Parrot  v.  C.  H  &D.  R.  CoJ 
10  Ohio  St.  624  (1858);  Columbus  &c.  R.  Co.  v.  Gardner,  45  Ohio  St.  309 
(1887),  and  Fliehman  v.  Cleveland.  C.  &  St.  L.  R.  Co.,  11  Ohio  Dec.  543 
(1893);  Thomason  v.  Seaboard  Air  Line  R.  Co.,  142  N.  Car.  3.18  (1906); 
Beseman  v.  Pennsylvania  R.  Co.,  50  N.  J.  L.  235  (1888)  ;  Louisville  &  Nash- 
ville Terminal  Co.  v.  Lellyett,  114  Tenn.  368  (1903)  ;  Fisher  v.  Seaboard  Atr 
Line,  102  Va.  363  (1904)  ;  Taylor  v.  Baltimore  &  O.  R.  Co.,  Z2,  W.  Va.  39 
(1889).  Contra,  Baltimore  Belt  R.  Co.  v.  Sat  tier,  100  Md.  306  (1905),  though 
here  the  smoke,  etc.,  complained  of  was  greatly  increased  by  the  defendants' 
disobedience  of  a  municipal  ordinance;  Fort  Worth  &c.  R.  Co.  v.  Pearce,  75 
Tex.  281  (1889),  and  Trinity  &  B.  V.  R.  Co.  v.  Jobe,  126  S.  W.  32  (Tex. 
Civ.  App.  1910)  ;  and  see  Willis  v.  Kentucky  &  L  Bridge  Co.,  104  Kv,  186 
(1898),  a  railroad  liable  if,  but  only  if,  the  plaintiff's  premises  are  invaded  by 
foreign  substances  such  as  smoke,  soot,  etc.,  compare  Cosby  v.  Owensboro 
etc.  R.  Co.,  10  Bush  288  (Ky.  1834). 

Accord:  also  the  following  cases  in  which  the  tracks  were  laid  upon  pub- 
lic highways,  Carson  v.  Central  R.  Co.,  35  Cal.  325  (1868)  ;  Chicago  B.  &c.  R. 
Co.  v.  McGinnis,  79  111.  269  (1875),  but  compare  Chicago  M.  &c.  R.  Co.  v. 
Darke,  148  111.  226  (1893)  ;  Harrison  v.  Nezv  Orleans  Pac.  R.  Co.,  34  La.  Ann. 
462  (1882)  ;  Grand  Rapids  &  L  R.  Co.  v.  Heisel,  38  Mich.  62  (1875)  ;  Stnith- 
ers  V.  Dunkirk  W.  &c.  R.  Co.,  87  Pa.  282  (1878)  ;  C.  &  P.  R.  Co.  v.  Speer,  56 
Pa.  325  (1867),  contra,  R.  R.  v.  Pearce,  and  Trinity  &  B.  V.  R.  Co.  v.  J  ope, 
126  S.  W.  32  (Tex.  Civ.  App.  1910).  In  Adams  v.  Chicago  &c.  R.  Co.,  39 
Minn.  286  (1888),  the  abutting  owner  is  held  entitled  to  recover,  because  as 
such  he  owns  the  fee  of  the  street  to  the  center  thereof,  compare  R.  R.  v. 
Heisel,  38  Mich.  62  (1875),  and  as  to  the  distinction  drawn  between  the  lay- 
ing and  operation  of  surface  roads  and  elevated  railroads,  compare  Fobes  v. 
Rome  W.  &-c.  R.  Co.,  121  N.  Y.  505  (1890)  with  Story  v.  New  York  El.  R. 
Co.,  90  N.  Y.  122  (1882) ;  Lahr  v.  Met.  Elev.  R.  Co.,  104  N.  Y.  268  (1887)  ; 
Sperbv.  Metropolitan  Elev.  R.Co.,U7  N.Y.  IBS  (1893). 

So  where  the  defendant  has  legislative  authority  to  lay  gas  pipes  it  is 
not  liable  for  the  escape  of  gas  therefrom  except  on  proof  of  negligence  in 
their  installation  or  maintenance.  Price  v.  So.  Met.  Gas  Co.,  65  L.  J.  Q.  B. 
126  (1895)  ;  see  Jaggard,  J.  in  Gould  v.  ll'inona  Gas  Co..  100  Minn.  258 
(1907)  ;  and  one  authorized  to  use  electricity  is  not  answerable  for  its  escape, 
if  its  plant  is  equipped  with  those  appliances  which  experience  shows  to  be 
best  to  prevent  such  escape,  National  Tel.  Co.  v.  Baker,  L.  R.  1893,  2  Ch. 
186;  Cumberland  Telephone  &c.  Co.  v.  United  Electric  R.  Co.,  42  Fed.  273 
(1890) ;  Lake  Shore  &  Mich.  So.  R.  Co.  v.  Chicago  L.  S.  &  S.  B.  R.  Co.,  48 
Ind.  App.  584  (1911)  ;  Railway  Co.  v.  Tel.  Assn.,  48  Ohio  St.  390  (1891). 

Where,  however,  the  operation,  as  the  running  of  trains  is  on  the  particu- 
lar occasion  in  violation  of  a  statute,  e.  g.,  a  statute  prohibiting  Sunday 
traffic,  a  general  legislative  authority  is  no  protection,  Georgia  R.  &c.  Co.  v. 
Maddox,  116  Ga.  64  (1903),  and  see  Taylor  v.  Seaboard  Air  Line.  145  N. 
Car.  400  (1907). 


1324  METROPOLITAN    ASYLUM    DLSTRICT    Z'.    HILL. 

The  plaintiffs'  remedy  by  action  being  taken  away,  the  quescion 
remains  whether  they  are  entitled  to  receive  compensation  from  the 
company  for  the  injury  done  to  their  house,  a  question  which  must 
be  decided  entirely  by  the  provision  of  the  Acts  of  Parliament  re- 
lating to  the  subject. 

Lord  Cairns  :  On  one  part  of  the  case  I  do  entirely  concur 
with  them.  It  appears  to  me  that  the  effect  of  the  legislation  on 
this  subject  is  to  take  away  any  right  of  action  on  the  part  of  the 
landowner  against  the  railway  company  for  damage  that  the  land- 
owner has  sustained.  It  must  be  taken,  I  think  from  the  statements 
in  this  case  that  the  railway  could  not  be  used  for  the  purpose  for 
which  it  was  intended  without  \'ibration.  It  is  clear  to  demonstra- 
tion that  the  intention  of  parliament  was,  that  the  railway  should  be 
used.  If,  therefore,  it  could  not  be  used  without  vibration,  and  if 
vibration  necessarily  caused  damage  to  the  adjacent  landowner,  and 
if  it  was  intended  to  preserve  to  the  adjacent  landowner  his  right 
of  action,  the  consequence  would  be  that  action  after  action  would 
be  maintainable  against  the  railway  company  for  the  damage  which 
the  landowner  sustained ;  and  after  some  actions  had  been  brought, 
and  had  succeeded,  the  Court  of  Chancery  would  interfere  by 
injunction,  and  would  prevent  the  railway  being  worked — which, 
of  course,  is  a  reductio  ad  ahsurdum,  and  would  defeat  the  inten- 
tion of  the  legislature.  I  have,  therefore,  no  hesitation  in  arriving 
at  the  conclusion  that  no  action  would  be  maintainable  against  the 
railway  company.^ 

The  fact  alone  would  certainly  prejudice  the  mind  to  find,  in 
the  enactments  upon  the  subject,  compensation  given,  in  some  form 
or  other,  for  the  loss  which,  beyond  all  doubt,  the  landowner  in  such 
a  case  sustains.  I  do  not  mean  to  say  that  it  would  be  safe  to  strain 
the  words  of  an  Act  of  Parliament  on  account  of  considerations 
of  that  kind,  but  if  there  be  any  doubt  or  ambiguity  in  the  words, 
the  consideration  ought  not  to  be  overlooked  that,  beyond  all  doubt, 
the  intention  of  legislation  of  this  kind  is  that,  in  some  shape  or 
other,  compensation  should  be  made  to  those  who  sustain  loss  or 
harm  by  the  operation  of  the  parliamentary  powers. 

Judgment  of  Exchequer  Chamber  reversed. 


MANAGERS  OF  THE  METROPOLITAN  ASYLUM  DIS- 
TRICT V.  HILL. 

Hotise  of  Lords,  1881.    L.  R.  1880-81,  6  App.  Cases.  193. 

The  Lord  Chancellor  (Lord  Selhorne)  : 

My  Lords,  it  must  be  assumed  for  the  present  purpose,  that 
the  small-pox  hospital  which  the  appellants  have  established  at 
Hampstead,  is,  in  its  actual  position,  and  independently  of  the  par- 
ticular way  in  which  it  is  conducted,  necessarily  a  nuisance  to  the 

^But  see  Galveston,  Harrisburg  &■  San  Antonio  R.  Co.  v.  De  Groff.  102 
Tex.  433  (1909)  ;  Raymond  v.  Transit  Development  Co.,  65  Misc.  70  (N.  Y. 
1909),  and  compare  Chicago  M.  &c.  R.  Co.  v.  Darke,  148  111.  226  (1893). 


METROPOLITAN    ASYLUM    DISTRICT    V.    HILL.  I325 

neighbors;  and  the  injunction,  which  has  been  granted  by  the  order 
appealed  against  "using  the  plot  of  land  mentioned  in  the  state- 
ment of  claim,  and  buildings  thereon,  as  a  hospital  for  small-pox  or 
any  other  infectious  or  contagious  disorder,  in  such  manner  as  to 
create  a  nuisance  to  the  plaintiffs,  or  either  of  them."  The  appel- 
lants are  therefore  obliged,  in  order  to  succeed  in  this  appeal,  to 
prove  that  they  have  statutory  authority  to  create  a  nuisance  for  the 
purpose  of,  and  as  incidental  to,  the  maintenance  of  a  small-pox  hos- 
pital in  this  place. 

The  appellants  say  that  such  authority  has  been  given  to  them 
by  the  5th,  7th,  and  15th  sections  of  the  Metropolitan  Poor  Act, 
1867.  and  by  orders  of  the  Poor  Law  Board  made  pursuant  thereto. 
As  far  as  the  orders  of  the  Poor  Law  Board  are  concerned,  they  did 
undoubtedly  direct  the  appellants  to  purchase  the  land  in  question 
at  a  specified  price,  and  to  build  upon  it  an  asylum  for  the  recep- 
tion of  poor  persons  infected  with  or  suffering  from  fever  or 
small-pox ;  and  I  assume  that  the  building,  as  erected  and  fitted  up 
on  that  land,  is  in  strict  accordance  with  plans  which  the  Poor  Law 
Board  has  prescribed  or  approved. 

The  statute  when  examined  is  found  to  confer,  in  general 
terms,  powers  exJtending  over  a  rather  wide  range  of  subjects.  So 
far  as  relates  to  a  hospital  or  asylum  of  this  particular  kind,  there 
is  nothing  in  it  mandatory  or  imperative.  Everything  which  it  nec- 
essarily requires  may  be  done,  though  no  such  hospital  should 
ever,  or  anywhere,  be  established.^ 

The  result  is:  (i)  That  this  act  does  not  necessarily  require 
anything  to  be  done  under  it  which  might  not  be  done  without 
causing  a  nuisance;  (2)  That  as  to  those  things  which  may  or 
may  not  be  done  under  it,  there  is  no  evidence  on  the  face  of  the 


^The  5th  section  says  that,  "asylums  to  be  supported  and  managed  ac- 
cording to  this  Act,  may  be  provided  under  this  Act  for  reception  or  relief  of 
the  sick,  insane  or  infirm,  or  other  class  or  classes  of  the  poor  chargeable  in 
unions  or  parishes  in  the  Metropolis."  The  6th  section  authorizes  the  forma- 
tion of  districts;  and  the  7th  requires  that,  in  each  district  so  formed,  "there 
shall  be^n  asylum  or  asylums  as  the  Poor  Law  Board  from  time  to  time  by 
order  direct ;"  leaving  the  class  of  poor  persons,  for  whom  any  such  asylum 
may  be  provided,  entirely  open.  The  ISth  section  enables  the  Poor  Law 
Board  from  time  to  time,  by  order,  to  direct  the  managers  "to  purchase  or 
hire,  or  to  build,  and  (in  either  case)  to  fit  up  a  building  or  buildings  for  the 
asylum,  of  such  nature  and  size,  and  according  to  such  plan,  and  in  such 
manner,  as  the  Poor  Law  Board  think  fit ;"  and  the  managers  are  required 
to  carry  such  directions  into  execution.  Subsequent  clauses  put  the  arrange- 
ment and  conduct  of  any  such  asylum  under  the  superintendence  of  the  Poor 
Law  Board.  No  compulsory  power  is  given  to  acquire  land,  or  any  interest 
in  land,  for  any  asylum  purposes.  The  Lands  Clauses  Acts  are  indeed  incor- 
porated by  sec.  52 ;  but  sec.  53  expressly  provides,  that  so  much  of  those  Acts 
as  relates  to  the  purchase  of  land,  otherwise  than  by  agreement,  shall  not  be 
put  in  force  except  for  certain  purposes,  not  including  these  asylums.  It  ap- 
pears incidentally  from  sec.  69  (which  provides  for  the  repayment  of  certain 
expenses  therein  specified  out  of  the  common  poor  fund),  that  asylums  might 
be  "specially  provided  under  this  Act  for  patients  suffering  from  fever  or 
smallpox;"  but.  except  in  that  way.  and  from  the  fact  that  the  general  cate- 
enry  of  "sick"  necessarily  includes  patients  suffering  from  any  kind  of., 
disease. 


1326  METROPOLTTAX    ASVLU>r    PTSTRTCT    7'.    HILL. 

Act  that  the  legislature  supposed  it  to  be  impossible  for  any  of 
them  to  be  done  (if  they  were  done  at  all)  somewhere  and  under 
some  circumstances,  without  creating  a  nuisance;  and  (3)  That 
the  legislature  has  manifested  no  intention  that  any  of  these  op- 
tional powers,  as  to  asylums,  should  be  exercised  at  the  expense 
of,  or  so  as  to  interfere  with,  any  man's  private  rights.  The  only 
sense  in  which  the  legislature  can  be  properly  said  to  have  au- 
thorized these  things  to  be  done,  is  that  it  has  enabled  the  Poor 
Law  Board  to  order,  and  the  managers  to  do  them,  if,  and  when, 
and  where,  they  can  obtain  by  free  bargain  and  contract  the  means 
of  doing  so. 

If  the  legislature  has  authorized  some  compulsory  interference 
with  private  rights  of  property,  within  local  limits  which  it  might 
have  thought  fit  to  define,  for  the  purpose  of  establishing  this 
asylum  to  be  used  for  the  reception  of  patients  suffering  from 
small-pox  or  other  infectious  disorders,  and  provided  for  compen- 
sation to  those  who  might  be  thereby  injuriously  affected  (in  such 
cases  and  under  such  conditions  as  it  might  have  prescribed)  the 
present  case  might  have  been  like  Rex  v.  Pease,  4  B.  &  Ad.  30.  and 
the  Hammersmith  Raikcay  Company  v.  Brand,  Law  Rep.  4  H.  L. 
171.  Xo  person  outside  the  statutory  line  of  compensation,  even  if 
the  use  of  the  asylum  in  the  manner  authorized  by  the  statute  had 
been  productive  of  serious  damage  to  him,  could  then  have  obtained 
any  relief  or  remedy,  upon  the  footing  that  what  the  statute  au- 
thorized was  a  legal  nuisance  to  himself,  or,  in  itself  an  actionable 
wrong.  But  the  case  is  different,  when  (as  here)  no  interference  at 
all  with  any  private  rights  is  authorized,  and  no  place,  or  limit  of 
space,  is  defined  within  which  the  establishment  of  such  an  asylum 
is  made  lawful.  Neither  the  Poor  Law  Board  nor  the  man- 
agers could  for  this  purpose  have  taken  a  single  foot  of  ground,  or 
have  interfered  with  any,  the  most  insignificant,  easement  against 
the  will  of  the  plaintiffs,  or  of  any  other  person  to  whom  such  land 
or  easement  might  belong.  No  line  is  here  drawn  by  the  legisla- 
ture between  interests  which  are,  and  interests  which  are  not,  proper 
subjects  for  compensation.  Under  these  circumstances,  I  am 
clearly  of  opinion  that  the  Poor  Law  Board  and  the  managers  had 
no  statutory  authority  to  do  anything  which  might  be  a  nuisance 
to  the  plaintiff's  without  their  consent. 

I  therefore  move  your  Lordships  to  affirm  the  judgment  of  the 
Court  below,  and  dismiss  this  appeal. 

Lord  Blackburn  : 

If  it  be  the  fact  that  such  an  asylum  must  be  a  nuisance,  unless 
on  a  site  so  extensive  as  to  keep  all  habitations  at  a  considerable 
distance,  it  may  be  that  such  a  site  cannot  be  obtained  at  all  in  the 
neighborhood  of  the  metropolis,  or  only  at  a  cost  so  enormous  to 
make  it  practically  impossible.  If  that  is  the  case  it  might  be  for 
the  consideration  of  the  legislature  whether  the  certain  danger  of 
infection,  from  leaving  the  infectious  sick  paupers  where  they  fell 
ill.  exceeded  that  which  would  arise  from  a  well-regulated  hospital 
erected  in  another  place,  to  such  an  extent  that  it  was  for  the  pub- 


I 


METROPOLITAX    ASYLUM    DISTRICT    V.    HILL.  1 327 

lie  benefit  that  this  latter  risk  should  be  run,  and  whether  the  rights 
of  owners  of  property  there  should  stand  in  the  way  of  such  a  public 
benefit,  or  should  be  made  to  give  way,  with  or  without  compen- 
sation. 

It  is  clear  that  the  burden  lies  on  those  who  seek  to  establish 
that  the  legislature  intended  to  take  away  the  private  rights  of  in- 
dividuals, to  show  that  by  express  words,  or  by  necessary  implica- 
tion, such  an  intention  appears.  There  are  no  express  words  in  this 
Act,  and  I  think  the.  weight  of  argument  is  rather  against  than  in 
favor  of  such  an  implication.  There  is  no  power  given  to  take  land 
for  a  site  otherwise  than  by  agreement.  For,  though  the  Lands 
Clauses  Acts  are  incorporated  by  sect.  52,  yet  by  sect.  53  so  mucli 
of  the  Lands  Clauses  Acts  as  relates  to  the  purchase  of  lands  other- 
wise than  by  agreement,  shall  not  be  put  in  force  except  for  the 
purpose  of  enlarging  an  existing  workhouse. 

The  asylum  under  this  Act  must  therefore  be  either  made  by 
(under  sect.  18)  converting  a  workhouse  into  an  asylum,  which  is 
not  the  present  case,  or  by  erecting  one  on  land  purchased  or  hired 
by  agreement.  In  Clozves  v.  Staffordshire  Potteries  Waterzuorks 
Company,  Law  Rep.  8  Ch.  Ap.  125,  Lord  Justice  Mellish  says 
(p.  139)  :  "if  no  compulsory  powers  were  given  for  the  purpose  of 
purchasing  lands  upon  which  the  works  were  to  be  built,  it  cer- 
tainly seems  extraordinary  that  compulsory  powers  should  be  given 
to  take  away  the  rights  of  other  persons,  who  have  rights  in  the  na- 
ture of  easements  over  the  lands  so  purchased." 

Lord  Watson  : — 

The  judgment  of  this  House  in  The  Hammersmith  Raihvay 
Company  v.  Brand,  Law  Rep.  4  H,  L.  171,  determines  that  where 
Parliament  has  given  express  powers  to  construct  certain  buildings 
or  works  according  to  plans  and  specifications,  upon  a  particular 
site,  and  for  a  specific. purpose,  the  use  of  these  works  or  build- 
ings, in  the  manner  contemplated  and  sanctioned  by  the  Act,  can- 
not, exc'ept  in  so  far  as  negligent,  be  restrained  by  injunction,  al- 
though such  use  may  constitute  a  nuisance  at  common  law ;  and 
that  no  compensation  is  due  in  respect  of  injury  to  private  rights, 
unless  the  Act  provides  for  such  compensation  being  made.  Accord- 
ingly the  respondents  did  not  dispute  that  if  the  appellants  or  the 
Local  Government  Board  had  been,  by  the  Metropolitan  Poor  Act, 
1867,  expressly  empowered  to  build  the  identical  hospital  which 
they  have  erected  at  Hampstead,  upon  the  very  site  which  it  now 
occupies,  and  that  with  a  view  to  its  being  used  for  the  treatment  of 
patients  suffering  from  small-pox,  the  respondents  would  not  be  en- 
titled to  the  judgment  which  they  have  obtained.  The  appellants 
do  not  assert  that  express  power  or  authority  to  that  effect  has 
been  given  by  the  Act  either  to  themselves  or  to  the  Board ;  but  they 
contend  that,  having  regard  to  the  nature  of  the  public  duties  laid 
upon  them,  and  the  necessities  of  the  case,  it  must,  on  a  fair  con- 
struction of  the  Act,  be  held  that  the  legislature  did  intend  them  to 
exercise,  such  power  and  authority  under  the  direction  and  control 
of  the  Poor  Law  Board. 


1328  METROPOLITAN    ASYLUM    DISTRICT    V.    HILL. 

I  see  no  reason  to  doubt  that,  wherever  it  can  be  shown  to  be 
matter  of  plain  and  necessary  impHcation  from  the  language  of  a 
statute,  that  the  legislature  did  intend  to  confer  the  specific  powers 
above  referred  to,  the  result  in  law  will  be  precisely  the  same  as  if 
these  powers  had  been  given  in  express  terms.  And  I  am  disposed 
to  hold  that  if  the  legislature,  without  specifying  either  plan  or  site, 
were  to  prescribe  by  statute  that  a  public  body  shall,  within  certain 
defined  limits,  provide  hospital  accommodation  for  a  class  or  classes 
of  persons  laboring  under  infectious  disease,  no  injunction  could 
issue  against  the  use  of  a  hospital  established  in  pursuance  of  the 
Act,  provided  that  it  were  either  apparent  or  proved  to  the  satisfac- 
tion of  the  Court  that  the  directions  of  the  Act  could  not  be  complied 
with  at  all,  without  creating  a  nuisance.  In  that  case,  the  necessary 
result  of  that  which  they  have  directed  to  be  done  must  presumably 
have  been  in  the  view  of  the  legislature  at  the  time  when  the  Act 
was  passed. 

On  the  other  hand,  I  do  not  think  that  the  legislature  can  be 
held  to  have  sanctioned  that  which  is  a  nuisance  at  common  law,  ex- 
cept in  the  case  where  it  has  authorized  a  certain  use  of  a  specific 
building  in  a  specified  position,  which  cannot  be  so  used  without 
occasioning  nuisance,  or  in  the  case  where  the  particular  plan  or 
locality  not  being  prescribed,  it  has  imperatively  directed  that  a 
building  shall  be  provided  within  a  certain  area  and  so  used,  it  be- 
ing an  obvious  or  established  fact  that  nuisance  must  be  the  re- 
sult. In  the  latter  case  the  onus  of  proving  that  the  creation  of  a 
nuisance  will  be  the  inevitable  result  of  carrying  out  the  directions 
of  the  legislature,  lies  upon  the  persons  seeking  to  justify  the  nui- 
sance. Their  justification  depends  upon  their  making  good  these 
two  propositions — in  the  first  place,  that  such  are  the  imperative 
orders  of  the  legislature ;  and  in  the  second  place,  that  they  cannot 
possibly  obey  those  orders  without  infringing  private  rights.  If 
the  order  of  the  legislature  can  be  implemented  without  nuisance, 
they  cannot,  in  my  opinion,  plead  the  protection  of  the  statute ;  and, 
on  the  other  hand,  it  is  insufficient  for  their  protection  that  what  is 
contemplated  by  the  statute  cannot  be  done  without  nuisance,  un- 
less they  are  also  able  to  show  that  the  legislature  has  directed  it  to 
be  done.  Where  the  terms  of  the  statute  are  not  imperative,  but 
permissive,  when  it  is  left  to  the  discretion  of  the  persons  em- 
powered to  determine  whether  the  general  powers  committed  to  them 
shall  be  put  into  execution  or  not,  I  think  the  fair  inference  is  that 
the  legislature  intended  that  discretion  to  be  exercised  in  strict  con- 
formity with  private  rights,  and  did  not  intend  to  confer  license  to 
commit  nuisance  in  any  place  which  might  be  selected  for  the  pur- 
pose. *  *  *  There  is  no  question  as  to  the  bona  fides  both  of  the 
Ijoard  and  of  the  managers.  It  is  clear  that  they  acted  in  the  honest 
belief  that  all  they  did  was  for  the  benefit  of  the  community,  and 
within  their  statutory  powers.  But  that  will  not  avail  if  the  Act  does 
not  empower  either  of  them,  or  both,  in  conjunction,  to  erect  an 
asylum  to  the  nuisance  of  neighboring  proprietors.  These  powers 
appear  to  me  to  be  from  first  to  last  permissive  and  not  imperative. 


METROPOLITAN    ASYLUM    DISTRICT   V.    HILL,  I329 

Whether  they  shall  be  exercised  at  all,  and,  if  so,  to  what  extent  and 
effect  their  exercise  shall  be  carried,  is  left  to  the  discretion  of  the 
Local  Government  Board.  No  doubt,  the  language  of  sect.  7  is 
imperative,  and  that  is  a  circumstance  upon  which  the  appellants 
were  fairly  entitled  to  argue  in  support  of  their  contention.  But 
it  is,  in  my  opinion,  a  conclusive  answer  to  their  argument  that,  in 
the  first  place,  the  Board  is  not  bound  to  form  a  district,  and  in  the 
second  pkce,  if  they  do  see  fit  to  form  a  district  in  terms  of  sect. 
6,  they  are  under  no  statutory  compulsion  to  establish  an  asylum  for 
small-pox  patients  by  reason  of  the  provisions  of  sect.  7,  but  have 
ample  means  of  satisfying  these  provisions  by  that  erection  and  the 
use  of  an  asylum  or  of  asylums  which  do  not  constitute  a  nuisance 
to  anybody.  So  far  as  regards  a  small-pox  hospital,  the  discretion 
committed  to  the  Board  is  not  limited  to  determining  on  what  site, 
of  what  size,  and  according  to  what  plan  it  shall  be  built,  but  in- 
volves the  duty  of  considering  and  determining  whether  it  shall  be 
built  at  all.- 


Gaynor,  J.,  in  Sadlier  v.  New  York,  (1903)  81  N.  Y.  S.  308.  The  law  in 
England  undoubtedly  is  that  if  Parhament  authorize  the  actual  taking  of  pri- 
vate property,  or  the  construction  and  use  by  an  individual  or  corporation  of 
anything  which  is  necessarily  a  private  nuisance,  or  injures  the  property  of 
individuals,  and  provides  no  compensation  therefor,  the  courts  can  give  no 
redress  for  the  injury.  The  question  in  each  case  is  whether  that  is  the  in- 
tention of  Parliament,  and  if  it  be  the  courts  are  bound  to  abide  by  it.  But 
while  Parhament  has  the  power  to  do  this,  the  courts  of  England  refuse  to 
construe  an  act  of  Parliamertt  as  doing  or  meaning  so  unjust  a  thing  unless 
the  act  be  so  specific  and  precise  that  it  cannot  be  otherwise  construed.  Man- 
agers V.  Hill,  6  App.  Cases,  193. 

But  this  is  so  in  England  only  because  Parliament  is  under  no  limitation 
or  restraint.  All  lawyers  and  other  students  of  constitutional  history  know 
that  Parhament  is  not  subject  to  the  constitutional  restraints  in  respect  of  pri- 
vate rights  which  legislative  -bodies  in  this  country  are  under.  It  is  omnipo- 
tent, as  the  expression  is.  Bryce's  Am.  Com.  vol.  1,  p.  32;  Lecky's  Dem.  & 
Lib.  vol.  1,  pp.  8,  53.  The  restraints  upon  government  contained  in  ]\lagna 
Charta  were  extorted  from  the  crown,  and  were  and  are  to  this  day  in  Eng- 
land upon  the  crown  or  executive  branch  of  government  only.  They  were 
never  restraints  upon  legislative  power  until  made  such  in  this  country  by 
our  fundamental  instruments  of  government.  Those  who  made  them  such 
may  not  have  been  aware  at  the  time  that  they  were  doing  so,  only  having  in 
mind,  it  may  be,  the  sense  in  which  such  restraints  had  been  theretofore  un- 
derstood; at  all  events  they  were  evidently  unaware  of  their  far-reaching 
effects  as  exemplified  by  modern  constitutional  development. 

In  tViis  country,  the  more  plain  and  explicit  the  Legislature  might  be  in 
authorizing  the  taking  of  private  property,  or  a  "direct"  injury  thereto,  liy  a 
nuisance  per  se,  or  any  trespass,  the  more  plain  it  would  make  manifest  that 
it  had  exceeded  its  constitutional  powers.    Kobbe  v.  Village  of  New  Brighton, 


"Accord:    Canadian  Pac.  R.  Co.  v.  Parke,  L.  R    1899    A    C    535      See 
Adler  V.  Pruett.  169  Ala.  213  (1910).  .... 


1330  KIXG   Z:    VICKSBURG    R.    &    L.    CO. 

20  Misc.  Rep.  477^  45  N.  Y.  S.  777.  The  full  extent  of  legislative  power  to 
legalize  and  shield  a  nuisance  is  to  exempt  it  from  public  prosecution.  Bohan 
V.  Port  Jcrvis  G.  L.  Co.,  122  N.  Y.  18.  25  N.  E.  246,  9  L.  R.  A.  711.' 


KING  V.  VICKSBURG  RAILWAY  &  LIGHT  CO. 
Supreme  Court  of  Mississippi,  1906.     88  Miss.  456. 

Campbell,  Special  J.  The  appellant  is  the  owner  of  a  piece  of  land  in 
Vicksburg,  on  the  north  side  of  Pine  street,  on  which  are  five  dwelling 
houses,  one  occupied  by  her  and  the  others  by  tenants.  The  appellee  owns 
and  operates  a  plant  on  its  land  on  south  side  of  that  street  for  generating 
electrical  power  to  furnish  light  for  the  city  and  its  inhabitants  and  a  street 
railway  system,  under  a  franchise  granted  by  the  city,  with  which  it  has  a 
contract  to  furnish  lights.  The  appellee  claimed  that  it  is  exempt  from  lia- 
bility for  any  damage,  because  it  is  operating  under  public  authority  confer- 
ring the  right  to  do  what  it  does.  The  court  instructed  the  jury  to  find  for 
the  defendant,  refusing  all  instructions  asked  by  the  "plaintiff. 

The  evidence  shows  that  the  property  of  the  plaintiff  was  damaged  by 
physical  invasion  of  deleterious  agents  produced  by  the  plant  of  the  defend- 
ant and  the  Alabama  &  Vicksburg  Railway,  and  it  should  have  been  left  to 
the  jury  to  say  from  which  and  to  what  extent.  Considered  as  if  between  two 
private  owners  of  the  two  properties,  without  reference  to  the  public  fran- 
chise, the  right  of  the  plaintiff  to  recover  damages  to  the  extent  that  it  may 
be  shown  that  they  proceed  from  a  physical  invasion  of  her  property  by  hurt- 
ful agents  proceeding  from  the  plant  of  the  defendant  is  clear.  No  owner  of 
property  may  set  in  motion  agencies  which  physically  invade  the  home  of 
another  without  liability  for  the  damage  done.  Surely  no  citation  of  author- 
ity for  this  proposition  can  be  necessary.  An  elaborate  discussion  of  the 
subject  is  contained  in  a  note  under  the  first  case  in  volume  1,  L.  R.  A.  (new 
series).  Public  authority  may  confer  the  right  to  operate  a  public  work,  and 
thus  make  it  lawful,  but  cannot  confer  a  right  to  take  or  damage  private 
property  without  compensating  the  owner  for  its  value  as  taken  or  damaged 
— that  is,  diminished  in  its  market  value  as  property — by  some  physical  in- 
vasion of  it  or  by  affecting  some  right  of  the  owner  in  relation  to  it.  Were 
an  act  passed  by  the  legislature  for  the  exercise  of  the  right  of  eminent  do- 
main declaring  that  no  liability  should  arise  for  noise,  smoke,  soot,  cinders, 
vibration,  and  the  like,  whatever  their  hurtful  effect  on  the  property  of 
others  might  be,  it  would  be  void,  because  the  elements  or  factors  of  damage 
to  property  depend  upon  facts,  and  are  to  be  ascertained  by  evidence  in  ju- 
dicial proceedings. 


'See  Eaton  v.  Boston  C.  &c.  R.  Co.,  51  N.  H.  504  (1872),  especially  pp. 
516-517. 

The  question  of  what  constitutes  a  "taking"  or  "injury"  or  "destruction" 
within  the  varying  terms  of  the  various  constitutional  prohibitions  and  the 
distinction  between  direct  and  consequential  damage  often  held  to  be  con- 
trolling belongs  to  the  Constitutional  law  rather  than  to  the  law  of  Torts.  It 
would  seem  that  the  distinction  often  drawn  between  acts  which  merely  sub- 
ject the  occupiers  of  adjacent  lands  to  slight  inconvenience  and  annoyance 
and  those  which  seriously  disturb  their  enjoyment.  (See  ScKvyer  v.  Davis, 
post,  and  cases  cited  in  note  1  thereto.) 


DOLAN    V.    CHICAGO,    M.    &    C.    R.    CO.  I33I 

Constitution  1890,  sec.  17.'  makes  the  right  of  the  owner  of  private  prop- 
erty superior  to  that  of  the  public,  reversing  the  former  rule  that  the  individual 
might  be  made  to  suffer  loss  for  the  public.  He  still  may  be  compelled  to  part 
with  his  property  for  public  use,  but  only  on  full  payment  for  it  or  any  right 
in  relation  to  it.  The  decisions  of  this  court  since  the  constitution  of  1890 
give  full  effect  to  the  just  rule  established  by  its  seventeenth  section,  by  main- 
taining the  right  of  the  owner  to  be  fully  compensated  for  any  loss  of  value 
sustained  from  any  physical  injury  to  his  property  or  disturbance  of  any 
right  in  relation  to  it,  whereby  its  market  value  is  diminished. 

It  is  worthy  of  observation  that  the  instruction  prescribed  to  be  given 
the  jury  in  eminent  domain  proceedings  is  that  "the  defendant  is  entitled  to 
due  compensation,  not  only  for  the  value  of  the  property  to  be  actually  taken, 
*  *  *  but  also  for  damages,  if  any,  which  may  result  to  him  as  a  consequence 
of  the  taking."  Code  1892,  §  1690;  Code  1906,  §  1865.  It  is  true  that  the  lan- 
guage of  section  17  of  the  constitution  was  intended  for  formal  condemna- 
tion proceedings,  wherein  it  provides  for  compensation  to  be  first  made  in  a 
manner  to  be  prescribed  by  law ;  but  it  is  equally  protective  of  the  owner  of 
private  property,  when  no  condemnation  is  had  and  his  property  is  taken  or 
damaged  by  public  use.  Due  compensation  is  what  ought  to  be  made — that 
is,  what  will  make  the  owner  whole  pecuniarily  for  appropriating  or  injuring 
his  property  by  any  invasion  of  it  cognizable  by  the  senses,  or  by  interfer- 
ence with  some  right  in  relation  to  property  whereby  its  market  value  is 
lessened  as  the  direct  result  of  the  public  use. 


DOLAN  V.  CHICAGO,  M.  &c.  R.  CO. 
Supreme  Court  of  Wisconsin,  1903.     118  Wis.  362. 

WiNSLOW,  J.  This  is  an  action  at  law,  under  sec.  3180,  Stats. 
1898,  to  recover  damages  for,  and  secure  the  abatement  of,  a  nui- 
sance. The  alleged  nuisance  consists  of  stock-yards,  maintained  by 
the  defendant  upon  its  depot  grounds  at  the  village  of  Cashton, 
from  which  offensive  and  injurious  odors  and  noises  are  said  to 
proceed  to  the  great  discomfort  of  the  plaintiff  and  his  family.  The 
evidence  was  entirely  sufficient  to  sustain  the  findings  of  the  jury, 
and  the  questions  presented  are  purely  questions  of  law. 

The  defendant  is  a  railway  company  duly  chartered  and  op- 
erating a  railroad.  It  is  bound  by  positive  requirement  of  law  to 
receive  and  transport  freight  tendered  to  it  for  shipment,  and  pro- 
vide suitable  facilities  for  receiving  and  handling  the  same  at  any 
of  its  stations.  Stats.  1898,  sec.  1798.  It  is  also  required  to  maintain 
a  station  at  every  village  through  which  it  passes  which  has  a  post 
office  and  a  population  of  200  people  or  more.  Id.  sec.  1801.  It 
must  receive  for  carriage  all  live  stock  offered  to  it  from  February 


^"Private  property  shall  not  be  taken  or  damaged  for  public  use,  except 
on  due  compensation  being  first  made  to  the  owner  or  owners  thereof,  in  a 
manner  to  be  prescribed  by  law ;  and  whenever  an  attempt  is  made  to  take 
private  property  for  a  use  alleged  to  be  public,  the  question  whether  the  con- 
templated use  be  public  shall  be  a  judicial  question,  and  as  such,  determined 
without  regard  to  legislative  assertion  that  the  use  is  public." 


1332  DOLAX    Z'.    CHICAGO,    M.    &    C.    R.    CO. 

1st  to  September  30th,  inclusive,  and  properly  transport  the  same 
over  its  road.  Id.  sec.  1799a.  In  order  to  discharge  the  statutory 
duty  of  receiving  and  transporting  live  stock,  it  must  have  facilities 
for  the  purpose  at  its  stations,  or  in  some  convenient  place  within 
a  reasonable  distance.  Inasmuch  as  it  cannot  have  a  train  ready 
at  all  times  to  immediately  receive  and  transport  the  stock  offered, 
it  must  necessarily  have  yards  or  inclosures  in  which  the  animals 
may  be  kept  until  they  can  be  taken  away  in  the  regular  course  of 
the  operation  of  the  road.  That  offensive  smells  and  unpleasant 
noises  will  inevitably  come  from  such  yards,  when  in  use,  is  matter 
of  common  knowledge.  The  skill  of  man  has  not  yet  devised 
means,  within  the  bounds  of  reasonable  expense  and  diligence,  by 
wdiich  these  disagreeable  results  can  be  wholly  avoided.  It  must 
follow  that,  if  a  railway  company  exercises  reasonable  and  proper 
diligence  and  care  in  the  location  of  its  yards  and  in  its  manage- 
ment, it  has  performed  its  whole  duty.  Impossibilities  cannot  be 
required.  Duties  cannot  be  imposed,  and  punishments  inflicted, 
simply  because  the  duties  have  been  performed.  If  injury  results  to 
others,  it  must  in  such  case  be  damnum  absque  injuria.  The  same 
rule  must  apply  which  applies  to  noise  and  smoke  and  steam  re- 
sulting from  the  operation  of  the  railroad.  If  these  annoyances 
result  simply  from  the  necessary  and  proper  operation  of  the  road, 
they  must  be  borne.  If  the  company  use  the  best  and  most  improved 
devices  to  prevent  injury  to  others,  it  is  protected  by  its  franchises. 
If  it  is  negligent  in  this  regard,  it  must  respond  in  damages,  if  a 
nuisance  is  thereby  created.  2  Wood,  Nuisances  (3d  ed.)  §  755. 
So,  in  the  case  of  stockyards,  the  railway  company  must  use  all 
reasonable  diligence  in  the  location  of  its  yards,  to  avoid  injury  to 
others,  and  must  manage  them  with  approved  methods,  i^^ing  all 
reasonable  skill  to  prevent  their  becoming  a  nuisance.  It  cannot 
unnecessarily  or  unreasonably  locate  its  yards  in  close  proximity 
to  dwellings  or  business  houses,  to  their  injury,  without  incurring 
liability.  It  must,  doubtless,  in  order  to  perform  its  duty,  place  the 
yards  in  a  reasonably  practicable  and  convenient  location  in  the 
vicinity  of  the  station,  for  the  reception  and  shipping  of  cattle,  but 
it  must  at  the  same  time  place  them  where  they  will  do  the  least 
possible  injury  to  others.  If  these  requirements  be  fulfilled,  and 
if  the  yards  be  operated  without  negligence,  and  with  that  skill 
and  diligence  to  avoid  noise  and  noxious  smells  therefrom  which  the 
importance  of  the  duty  demands,  there  can  be  no  liability,  even 
though  injury  may  result  to  others.  Such  injury,  like  many  others, 
is  simply  one  of  the  penalties  we  have  to  pay  for  the  conveniences  of 
modern  methods  of  transportation. 

Much  reliance  was  placed  by  the  plaintiff  upon  Baltimore  & 
P.  R.  Co.  V.  Fifth  Baptist  Church,  108  U.  S.  317,  2  Sup.  Ct.  719, 
and  Anderson  v.  C,  M.  &  St.  P.  R.  Co.,  85  Minn.  337,  88  N.  W. 
looi.  In  the  first  of  these  cases  a  railroad  company  had  con- 
structed a  roundhouse  and  machine  shop  next  to  a  church,  and  the 
noise  seriously  disturbed  the  religious  exercises.  This  was  held  to 
be  an  actionable  nuisance,  but  the  fact  plainly  appeared  in  the  case 


COGSWELL    r.    NEW    YORK    X.    II.    &    H.    R.    CO.  1333 

that  the  location  was  unreasonable,  and  that  there  were  many  other 
I^laces  in  the  city  where  the  shop  could  have  been  placed,  and  an- 
swer all  railroad  purposes  fully  as  well.  These  being  the  facts,  it 
was  held  that  the  shop  so  situated  was  a  nuisance,,  and  that,  what- 
ever rights  were  conferred  on  the  railroad  company  by  its  charter, 
they  were  subject  to  the  qualification  that  their  works  should  not  be 
so  placed  as  by  their  use  to  unreasonably  interfere  with  and  disturb 
the  comforts  of  others.  The  case  goes  no  further,  and,  when  rightly 
understood,  it  does  not  antagonize  the  propositions  already  laid 
down  in  this  opinion.  The  second  case  cited  is  a  stockyards  case, 
and  contains  language  tending  to  justify  plaintiff's  position  here. 
In  that  case,  however,  the  evidence  established  the  fact  that  the 
yards  were  kept  in  an  absolutely  filthy  condition,  to  the  extent  that 
dead  animals  were  allowed  to  remain  in  them  and  become  putrid. 
In  view  of  these  facts,  the  opinion  must  be  read.  The  court  said, 
in  substance,  that  defendant's  claim  was  that  it  had  a  right  to  select 
any  place  on  its  right  of  way  for  the  reception  and  shipment  of 
stock,  but  that  it  could  not  be  conceded  that  a  railroad  company 
could  rightfully  create  noxious  conditions  on  its  own  property  so 
near  the  private  dwellings  of  others  as  unnecessarily  to  interfere 
with  the  health  of  the  inmates.  Here  the  element  of  necessity, 
which  must  mean  reasonable  necessity  in  the  proper  conduct  of  its 
business,  is  plainly  recognized.  This  is  not  the  case  of  a  manufac- 
turing company,  which  may  purchase  property  and  locate  its  works 
wherever  it  may  choose.  The  stockyards  must  be  adjacent  to  the 
railroad  line,  the  location  of  which  is  fixed,  and  they  must  be  at  or 
in  convenient  proximity  to  a  station.  It  will  not  do  to  say  that  the 
company  must  go  out  into  unsettled  districts  in  the  country  for  its 
stockyards,  for  that  is  to  say  that,  as  soon  as  people  begin  to  reside 
•in  the  vicinity,  the  yards  must  be  again  removed  to  some  more  se- 
cluded spot,  and  so  on  ad  infinihtm.^ 


COGSWELL  V.  NEW  YORK  N.  H.  &  H.  R.  CO. 

Court  of  Appeals  of  New  York,  1886.     103  N.  Y.  10. 

Appeal  from  judgment  of  the  General  Term  of  the  Superior 
Court,  of  the  city  of  Xew  York,  entered  upon  an  order  made  De- 
cember 12,  i88i,  which  affirmed  a  judgment  in  favor  of  defendant, 


^Accord:  Cievcland  ^f  Pittsburgh  R.  Co.  v.  Spcer,  56  Pa.  325  (1867). 
power  to  construct  railroad  in  the  most  direct  and  least  expensive  route  held 
to  authorize  the  construction  of  switches  and  side-tracks  and  to  give  to  the 
company  wide  discretion  to  determine  where  they  should  be  constructed, 
compare  London  Brighton  &  South  Coast  R.  Co.  v.  Truman,  L.  R.  11  A.  C. 
45  (1885).  reversing  the  decision  of  the  Court  of  Appeal,  L.  R.,  25  Ch.  Div. 
423:  Beidehnan  v.  Atlantic  City  R.  Co.,  19  AU.  731  (N.  J.  Ch.  1890).  power 
to  condemn  land  for  terminal  held  to  authorize  its  location  near  residences ; 
Georgia  R.  e-rc.  Co.  v.  Maddox.  116  Ga.  64  (1902)  ;  Tavlor  v.  Seaboard  Air 
Line.  145  N.  Car.  400  (1907).  In  Romer  v.  St.  Paul  City  R.  Co.,  75  Minn. 
211  (1899),  a  distinction  is  drawn  between  the  shops,  round-houses,  etc..  of 
steam  railroads  as  to  which  it  is  intimated  that  there  is  a  wide  choice  of  prac- 


1334  COGSWELL   V.    XEW    YORK    N.    H.    &    H.    R.    CO. 

entered  upon  a  decision  of  the  court  on  trial  without  a  jury.  (Re- 
ported below,  i6  J.  &  S.  31.) 

This  action  was  brought  to  recover  damages  to  plaintiff's  prem- 
ises in  the  city  of  New  York,  alleged  to  have  been  caused  by  the  use 
on  the  part  of  defendant  of  an  engine-house  on  adjoining  premises, 
and  to  restrain  such  use. 

The  material  facts  are  stated  in  the  opinion. 

Andrews,  J.  We  are  relieved  by  the  findings  of  the  trial  judge, 
from  any  question  as  to  the  sufficiency  of  the  evidence  to  establish 
that  the  engine-house  as  used  by  the  defendant,  constitutes,  under 
the  general  rule  of  law,  a  private  nuisance  to  the  property  of  the 
plaintiff.  It  is  scarcely  necessary  to  cite  authorities  to  show  that  the 
engine-house  as  used,  was,  within  every  definition  a  nuisance,  for 
which,  as  between  individuals,  an  action  would  lie  for  damages,  and 
for  which  a  court  of  equity  would  afford  a  remedy  by  injunction. 
The  court  placed  its  judgment  denying  relief,  upon  the  ground  that 
the  defendant  was  a  railroad  corporation,  authorized  by  law  to 
acquire  real  estate  for  an  engine-house ;  that  an  engine-house  at  the 
point  where  this  engine-house  was  erected  was  necessary  for  the 
operation  of  its  road ;  and  that  in  the  construction  and  use  of  the 
engine-house  and  coal-bins,  it  had  exercised  all  practicable  care. 
The  finding  of  law  from  these  premises,  was  that  "whatever  dam- 
age resulted  to  the  plaintiff  or  his  property,  by  reason  of  the  de- 
fendant's use  and  occupation  of  its  engine-house  and  coal-bins,  is 
damnum  absque  injuria. 

It  is  manifest  that  if  this  judgment  can  stand  a  most  serious 
injury  is  inflicted  by  the  defendants  upon  the  plaintiff*  for  which  she 
has  no  redress.  Her  premises  are  subjected  to  a  burden  in  the  na- 
ture of  a  servitude  in  favor  of  the  defendant,  which  seriously  im- 
pairs the  value  and  enjoyment  of  her  property.  The  principle  upoi> 
which  the  court  below  proceeded,  was  that  what  the  legislature  has 
authorized  the  defendant  to  do,  can  neither  be  a  public  nor  private 
wrong ;  in  other  words  the  legislature  has  authorized  the  mainte- 
nance of  this  nuisance  by  the  defendant  and  the  plaintiff  must  bear 
the  consequences.  The  court  below,  in  denying  any  relief  to  the 
plaintiff,  of  course  assumed  that  the  legislative  authority  and  the 
act  of  the  defendant  thereunder  resulting  in  flooding  the  plaintiff's 
premises  with  soot,  smoke  and  noxious  gases  was  not  a  taking  of 
the  plaintiff's  property  within  the  constitution.  We  place  our  judg- 
ment in  this  case  on  the  ground  that  the  legislature  has  not  author- 
ized the  wrong  of  which  the  plaintiff  complains,  and  it  is.  therefore, 
unnecessary  to  determine  whether  the  legislature  could  have  au- 
thorized it  consistently  with  the  principles  of  the  constitution  for 
the  security  of  private  rights,  without  providing  for  compensation. 

We  shall  pass  without  examination  the  question  whether  the 
authority  given  to  the  defendant  to  purchase  land  for  an  engine- 


ticable  location  and  a  car-barn  of  a  street  railway,  which  it  said  must  be  lo- 
cated in  a  residential  district,  and  holding  that,  in  the  choice  of  the  location 
of  such  a  barn,  the  rights  of  the  railway  and  the  public  served  by  it  must  be 
consulted  as  well  as  those  of  adjacent  property  owners. 


COGSWELL    V.    NEW   YORK    X.    II.    &    H.    R.    CO.  I335 

house  is  implied  in  the  power  conferred  in  the  sixth  section  of  the 
act  of  1848,  to  enter  into  an  agreement  with  the  Harlem  railroad 
for  the  use  of  the  tracks  of  that  road,  and  to  run  its  cars  thereon  to 
the  city  of  New  York.    For  the  purpose  of  this  case  we  shall  assume 
that  the  general  power  conferred  included  the  latter  power  as  inci- 
dent.   It  is  no  doubt  a  settled  principle  of  the  law  that  many  things 
may  be  done  by  the  owner  of  land,  causing  consequential  damages 
to  his  neighbor,  for  which  the  law  affords  no  remedy.     The  cases 
embraced  within  this  rule  are  those  either  where  what  was  done  was 
in  the  lawful  and  reasonable  use  by  an  owner  of  land  of  his  own 
property,  or  where  the  damages   suffered,  although  by  possibility 
attributable  to  the  wrongful  act  of  another,  were  too  remote  there- 
from to  justify  the  court  in  treating  the  one  as  the  sequence  of  the 
other.     The  case  before  us  belongs  to  neither  of  these  categories. 
The  defendant's  engine-house,  as  maintained,  was  a  palpable  nui- 
sance, causing  special  injury  to  the  plaintiff,  for  which,  by  the  gen- 
eral rule  of  the  common  law,  she  has  a  right  of  action.     The  de- 
fendant, however,  does  not  rely  for  its  justification  upon  the  ordi- 
nary rule  governing  the  rights  of  adjoining  proprietors,  but,  as  we 
have  said,  rests  upon  the  claim  that  the  legislature  has  authorized 
the  acts  of  which  the  plaintiff  complains,  and  has,  therefore,  made 
that  lawful  which  otherwise  might  be  unlawful,  and  has  taken  away 
any  remedy  which  the  plaintiff  otherwise  might  have  had.     It  is 
undoubtedly  true  that  there  are  cases  in  which  the  legislature  in  the 
public  interest  may  authorize  and  legalize  the  doing  of  acts  resulting 
in  consequential  injury  to  private  property,  without  providing  com- 
pensation, and  as  to  which  the  legislative  sanction  may  be  pleaded 
in  bar  of  any  claim  for  indemnity.     Indeed  such  is  the  transcendant 
power  of  parliament,  that  it  is  the  settled  doctrine  of  the  English 
law  that  no  court  can  treat  that  as  a  public  or  private  wrong  which 
parliament  has  authorized,  and  consequently,  as  stated  by  Black- 
burn, J.,  in  Hammersmith,-  etc.,  Raikvay  Co.  v.  Brand   (4  H.  L. 
Cas.  (Eng.  &  Ir.  App.)  171),  "the  person  who  has  sustained  a  loss 
by  the  doing  of  that  act  is  without  remedy,  unless  in  so  far  as  the  leg- 
islature has  thought  it  proper  to  provide  for  compensation."     The 
legislative  power  in  this  country  is  subject  to  restrictions,  but  never- 
theless private  property  is  frequently  subjected  to  injury  from  the 
execution  of  public  powers  conferred  by  statute,  for  which  there  is 
no  redress.    The  case  of  consequential  injuries  resulting  from  street 
improvements  authorized  by  the  legislature  is  a  familiar  example.^ 
The  case  of  Bellinger  v.  Neiv  York  Central  Railroad  Company-  is 
perhaps  the  strongest  case  to  be  found  in  our  reports,  of  the  appli- 
cation of  the  doctrine  that  a  statutory  authority  justifies  acts  which 
otherwise  would  give  a  right  of  action.     But  it  will  be  noticed  that 
it  was  a  case  where  the  line  of  the  road  was  fixed  by  the  charter.    It 
was  necessary  in  constructing  the  road  on  that  line,  to  cross  the 
creek  on  a  bridge,  and  the  low  lands  upon  an  embankment.     The 
flooding  of  the  plaintiff's  premises  was  an  unusual  occurrence,  and 


'Citing  Radcliff  v.  Maxor,  4  N.  Y.  195. 
*23  N.  Y.  42. 


1336  COGSWELL   ^'.    NEW    YORK    N.    H.    &    H.    R.    CO. 

the  evidence  was  very  slight  that  it  was  caused  by  the  structures  of 
the  defendant.  It  was  under  these  circumstances  that  the  court 
reached  the  conclusion  that  the  damages  suffered  by  the  plaintiff 
were  not  recoverable  in  the  absence  of  negligence  on  the  part  of  the 
defendant  in  the  construction  of  the  road. 

But  the  statutory  sanction  which  will  justify  an  injury  to  pri- 
vate property,  must  be  express,  or  must  be  given  by  clear  and  un- 
questionable implication  from  the  powers  expressly  conferred,  so 
that  it  can  fairly  be  said  that  the  legislature  contemplated  the  doing 
of  the  very  act  which  occasioned  the  injury."  This  is  but  an  appli- 
cation of  the  reasonable  rule  that  statutes  in  derogation  of  private 
rights,  or  which  may  result  in  imposing  burdens  upon  private  prop- 
erty, must  be  strictly  construed.  For  it  cannot  be  presumed,  from  a 
general  grant  of  authority,  that  the  legislature  intended  to  authorize 
acts  to  the  injury  of  third  persons,  where  no  compensation  is  pro- 
vided, except  upon  condition  of  obtaining  their  consent.  This  con- 
struction of  statutory  powers,  applies  with  peculiar  force  to  grants 
of  corporate  powers  to  private  corporations,  which  are  set  up  as  a 
justification  of  corporate  acts  to  the  detriment  of  private  property.* 

The  authority  conferred  upon  the  defendant  by  the  sixth  section 
of  the  act  of  1848,  to  run  its  trains  over  the  Harlem  railroad,  was 
not,  however  broadly  construed,  a  legislative  sanction  to  commit  a 
nuisance  upon  private  property.  The  authority  expressly  given  was 
not  absolute,  but  conditional  upon  obtaining  the  consent  of  the 
Harlem  railroad.  It  could  not  be  known  by  the  legislature  that  the 
building  of  an  engine-house  would  necessarily  interfere  with  private 
rights.  However  necessary  it  may  be  for  the  defendant  that  its 
engine-house  should  be  located  where  it  is,  this  constitutes  no  justi- 
fication for  the  injury  suffered  by  the  plaintiff',  nor  is  it  any  answer 
to  the  action  that  it  exercises  all  practicable  care  in  its  management. 
It  may  have  the  right,  which  it  claims,  to  acquire  land  by  purchase 
for  the  accommodation  of  its  business,  but  it  must  secure  such  a  loca- 
tion as  will  enable  it  to  conduct  its  operations  without  violating  the 
just  rights  of  others.  Public  policy  indeed  requires  that  in  adjust- 
ing the  mutual  relations  between  railroad  companies  and  individ- 
uals, courts  should  not  stand  upon  the  assertion  of  extreme  rights 
on  either  side,  but  in  this  case  facts  leave  no  room  for  doubt  that 
the  plaintiff  has  suffered  a  substantial  and  unauthorized  injury. 

The  case  of  Baltimore  &  Poiomac  Railroad  Co.  v.  Fifth  Bap- 
tist Church  (108  U.  S.  317)  fully  supports  the  conclusion  we  have 
reached  in  this  case,  and  the  able  opinion  of  \lv.  Justice  Field  in 


'See  Schopp  v.  St.  Louis,  117  Mo.  131  (1893),  and  Sultan  v.  Parker- 
IVashington'Co.,  117  Mo.  App.  636  (1906).  , 

Mn  Beidelman  v.  Atlantic  City  R.  Co.,  19  Atl.  731  (N.  J.  Ch.  1890).  the 
fact  that  the  defendant  had  been  given  the  power  to  condemn  land  for  a 
terminal  was  regarded  as  important. 


COGSWELL   V.    NEW    YORK    X.    H.    &    H.    R.    CO.  I337 

that   case   vindicates   the   right   of   private   property   to   protection 
against  substantial  invasions  under  color  of  corporate  franchises. 

The  judgment  should  be  reversed  and  a  new  trial  ordered. 

All  concur. 

Judgment  reversed.^ 


Mn  Choctaw  O.  &  G.  R.  Co.  v.  Drew,  130  Pac.  1149  (Okla.  1913),  Louis- 
ville &■  Nashville  Terminal  Co.  v.  Lcllvctt,  114  Tenn.  389  (1905),  and  Mis- 
souri K.  &c.  R.  Co.  v.  Mott,  98  Tex.  91  (1904),  it  is  held  that  railroads  in 
locating  their  necessary  terminals,  engine-houses,  shops,  etc.,  do  so  at  their 
peril;  in  Terrell  v.  C.  &  O.  R.  Co.,  110  Va.  340  (1909),  it  is  held  that  while  a 
railroad  in  carrying  passengers  and  freight  is  performing  public  functions,  it 
acts  in  a  private  capacity  in  providing  means  for  such  carriage,  as  by  the 
erection  and  operation  of  shops,  engine-houses  and  power  plants. 

In  the  following  cases  the  location  was  manifestly  improper  or  the  de- 
fendant failed  to  show  that  his  plant  could  not  have  been  located  at  some 
point  where  it  would  have  done  less  or  no  harm  to  adjacent  owners,  Chicago 
G  &c.  R.  Co.  V.  First  M.  E.  Church,  102  Fed.  85  (C.  C.  A.  8th  Circ.  1900), 
and  Baltimore  &  Ohio  R.  Co.  v.  Fifth  Baptist  Church,  in  the  one  case,  a 
water  tank  for  the  supply  of  engines,  in  the  other  an  engine-house  and  shop 
located  in  the  residential  district  in  the  immediate  vicinity  of  complainant 
church;  Shivelv  v.  Cedar  Rapids,  loiva  Falls  &  Northzvcstern  R.  Co.,  74 
Iowa  169  (1887),  cattle  pens  and  yards;  Churchill  v.  Burlington  Water  Co., 
194  Iowa  89  (1895),  water  works  located  at  a  point  not  yet  approved  by  local 
councils;  Sultan  v.  Parker-Washington  Co..  117  ^Mo.  App.  636  (1906),  con- 
tract to  lay  asphalt  for  city  held  to  give  no  license  to  operate  a  movable  plant 
at  the  point  where  the  work  was  being  done;  Towaliga  Falls  Power  Co.  v. 
Sims,  6  Ga.  App.  749  (1909),  power  company  furnishing  electric  power  to 
municipalities  held  not  entitled  to  erect  dams  where  they  collect  stagnant 
water,  which  serve  as  a  breeding  place  for  mosquitoes.  So  the  deferidant 
must  show  that  the  act  which  causes  injury  or  annoyance  to  others  is  itself 
expressly  authorized  or  is  necessary  to  carry  out  the  operations  expressly 
authorized,  it  is  not  enough  that  it  is  a  convenient  or  economical  means  for  so 
doing,  Bohan  V.  Port  Jcrvis  Gaslight  Co.,  122  N.  Y.  18  (1890),  gas  company, 
for  the  sake  of  economy,  adopted  a  new  process  which  greatly  increased  the 
offensive  character  of  its  operations;  Roseuhcimcr  v.  Standard  Gaslight  Co., 
36  Anp.  Div.  1  ( N.  Y.  1898);  Kobbe  v.  Keiv  Brighton.  23  App.  Div.  243 
(1897)  ;  Illinois  Central  R.  Co.  v.  Grahill,  50  111.  241  (1869),  cattle  pen  kept 
in  unnecessarily  filthy  condition;  Wylie  v.  Ehvood,  134  111.  281  (1890),  held 
to  be  a  question  for  the  jury  whether  the  method  of  unloading  coal  adopted 
by  the  defendant  was  proper;  McAndrews  v.  Collerd,  42  N.  J.  L.  189  (1880), 
explosives,  necessary  to  do  the  blasting  required  to  construct  an  authorized 
tunnel,  stored  near  the  scene  of  the  operation  but  within  city  limits ;  and 
compare  Pennsvlvania  R.  Co.  v.  Anqel,  41  N.  J.  Eq.  316  (1886),  and  Pennsyl- 
vania R.  Co.  v.  Thompson,  45  N.  J.  En.  870  (1889).  with  Bcideman  v.  Atlantic 
City  R.  Co.,  19  Atl.  731  (N.  J.  Ch.  189()")  ;  see  also  G.  B.  &  L.  R.  Co.  v.  Eagles, 
9  Colo.  544  (1886)  ;  Attorney-General  v.  Colney  Hatch  Lunatic  Asylum,  L.  R. 
4  Ch.  App.  146  (1868),  committee  authorized  to  maintain  large  lunatic  asylum 
held  not  justified  in  discharging  the  resulting  sewage  upon  adjoining  lands; 
West  v.  Bristol  Trannvays  Co.,  L.  R.  1908,  2  K.  B.  14.  ante,  p.  593,  n.  1; 
Ogston  V.  Aberdeen  District  Tramwavs.  L.  R.  1897,  A.  C.  Ill;  Alliance  &c. 
GasCo.y.  Dublin,  lIvhhR.  492  (1901). 

This  applies  also  to  public  works  executed  under  legislative  authority  by 
a  municipality,  Morton  v.  New  York,  140  N.  Y.  207  (1893),  Winona  v.  Botzet, 
169  Fed.  321  (1909)  ;  but  see  Miller _  v.  Webster  City,  94  Iowa  162  (1895). 
Where  the  power  of  eminent  domain  is  given  to  those  executing  the  au- 
thority, it  is  suggested  in  Towaliga  Falls  Co.  v.  Sims,  and  Morton  v.  Mayor, 
140  X.  Y.  207  (1893),  that  if  the  structure  or  its  operation  is  one  necessarily 
injurious  to  adjacent  property,  destructive  of  the  reasonable  comfort  or 
health  of  its  occupants,  all  the  lands  likely  to  be  injuriously  affected  should 
be  acquired  by  condemnation. 


1338 


SAWYER   V.    DAVIS. 


POTTSTOWN  GAS  CO:\IPANY  v.  :\IURPHY. 

Supreme  Court  of  Pennsylvania,  1861.     39  Pa.  257. 

LowRiE,  C.  J.  (After  approving  the  instructions  of  the  court, 
under  which  the  jury  had  found  that  the  stench  from  the  defendants' 
gas  works  and  the  percolation  of  offensive  matter  from  them  to  the 
plaintiff's  well  were  a  nuisance.)  But  the  defendants  think  that  as 
a  corporation,  authorized  by  statute  to  carry  on  this  business,  and  to 
purchase  in  fee  simple  such  real  estate  as  may  be  necessary  for  it, 
they  are  not  answerable  for  such  consequential  damages  as  are  com- 
plained of  here,  ^^'e  cannot  adopt  this  view.  Xo  such  exemption 
is  involved  in  the  fact  of  incorporation,  nor  in  the  privilege  of  buy- 
ing land.  The  principle  they  invoke  applies  only  where  an  incorpo- 
ration, clothed  with  a  portion  of  the  state's  right  of  eminent  domain, 
takes  private  property  for  public  use  on  making  compensation, 
and  where  such  damages  are  not  part  of  the  compensation  required. 

Judgment  affirmed.^ 

Strong,  J.,  dissented. 

SAWYER  V.  DAVIS. 

Supreme  Judicial  Court  of  Massachusetts,  1884.     136  Mass.  239. 

C.  Allen,  J.  Nothing  is  better  established  than  the  power  of 
the  legislature  to  make  what  are  called  police  regulations,  declaring 
in  what  manner  property  shall  be  used  and  enjoyed,  and  business 
carried  on,  with  a  view  to  the  good  order  and  benefit  of  the  com- 
munity, even  although  they  may  to  some  extent  interfere  with  the 
full  enjoyment  of  private  property,  and  although  no  compensation 
is  given  to  a  person  so  inconvenienced.  Bancroft  v.  Cambridge.  126 
Mass.  438,  441.  In  most  instances,  the  illustrations  of  the  proper 
exercise  of  this  power  are  found  in  rules  and  regulations  restrain- 
ing the  use  of  property  by  the  owner,  in  such  a  manner  as  would 
cause  disturbance  and  injury  to  others.  But  the  privilege  of  con- 
tinuing in  the  passive  enjoyment  of  one's  own  property,  in  the  same 
manner  as  formerly,  is  subject  to  a  like  limitation;  and  with  the  in- 
crease of  population  in  a  neighborhood,  and  the  advance  and  de- 
velopment of  business,  the  quiet  and  seclusion  and  customary  en- 
joyment of  homes  are  necessarily  interfered  with,  until  it  becomes  a 
question  how  the  right  which  each  person  has  of  prosecuting  his 
lawful  business  in  a  reasonable  and  proper  manner  shall  be  made 


^Accord:  Hauck  v.  Tidewater  Pipe  Line,  153  Pa.  St.  366;  Rogers  v. 
Phila.  Traction  Co..  182  Pa.  St.  473  (1897).  See  Schopp  v.  St.  Louis,  117 
]Mo.  131  (1893),  holding  that  no  immunity  attaches  to  a  license  granted  not 
for  the  pubHc  good  but  for  the  benefit  of  the  licensee;  and  compare  Jones  v. 
Sanitary  District  of  Chicago,  252  111.  591  (1912),  holding  that  legislative  au- 
thority to  a  sanitary  district  gave  immunity  for  only  those  the  works  for 
which  compensation  had  been  paid  or  secured,  with  Boothby  v.  Androscog- 
gin &c.  R.  Co.,  51  Maine  318  (1863). 


SAWYER    Z'.    DAVIS.  I339 

consistent  with  the  other  right  which  each  person  has  to  be  free 
from  unreasonable  disturbance  in  the  enjoyment  of  his  property. 
MerriHeld  v.'  Worcester,  no  Mass.  216,  219.  In  this  conflict  of 
rights,  pohce  regulations  by  the  legislature  find  a  proper  office  in 
determining  how  far  and  under  what  circumstances  the  individual 
must  yield  with  a  view  to  the  general  good. 

It  is  ordinarily  a  proper  subject  for  legislative  discretion  to  de- 
termine by  general  rules  the  extent  to  which  those  who  are  engaged 
in  customary  and  lawful  and  necessary  occupations  shall  be  required 
or  allowed  to  give  signals  or  warnings  by  bells  or  whistles,  or  other- 
wise, with  a  view  either  to  the  public  safety,  as  in  the  case  of  rail- 
roads, or  to  the  necessary  or  convenient  operation  and  management 
of  the!r  own  works ;  and  ordinarily  such  determination  is  binding 
upon  the  courts,  as  well  as  upon  citizens  generally.  And  when  the 
legislature  directs  or  allows  that  to  be  done  which  would  otherwise 
be  a  nuisance,  it  will  be  valid,  upon  the  ground  that  the  legislature 
is  ordinarily  the  proper  judge  of  what  the  public  good  requires,  un- 
less carried  to  such  an  extent  that  it  can  fairly  be  said  to  be  an  un- 
wholesome and  unreasonable  law.  Bancroft  v.  Cambridge,  126 
Mass.  441.  It  is  accordingly  held  in  many  cases,  and  is  now  a  well- 
established  rule  of  law,  at  least  in  this  commonwealth,  that  the  inci- 
dental injury  which  results  to  the  owner  of  property  situated  near  a 
railroad,  caused  by  the  necessary  noise,  vibration,  dust,  and  smoke 
from  the  passing  trains,  which  would  clearly  amount  to  an  action- 
able nuisance  if  the  operation  of  the  railroad  were  not  authorized 
by  the  legislature,  must,  if  the  running  of  the  trains  is  so  authorized, 
be  borne  by  the  individual,  without  compensation  or  remedy  in  any 
form.  The  legislative  sanction  makes  the  business  lawful,  and  de- 
fines what  must  be  accepted  as  a  reasonable  use  of  property  and 
exercise  of  rights  on  the  part  of  the  railroad  company,  subject  al- 
ways to  the  qualification  that  the  business  must  be  carried  on  with- 
out negligence  or  unnecessary  disturbance  of  the  rights  of  others. 
And  the  same  rule  extends  to  other  causes  of  annoyance  which  are 
regulated  and  sanctioned  by  law. 

The  recent  case  of  Baltimore  &  Potomac  Railroad  v.  Fifth 
Baptist  Church,  108  U.  S.  317,  is  strongly  relied  on  by  the  defend- 
ants as  an  authority  in  their  favor.  There  are,  however,  two  mate- 
rial and  decisive  grounds  of  distinction  between  that  case  and  this. 
There  the  railroad  company  had  only  a  general  legislative  authority 
to  construct  works  necessary  and  expedient  for  the  proper  comple- 
tion and  maintenance  of  its  railroad,  under  which  authority  is  as- 
sumed to  build  an  engine-house  and  machine-shop  close  by  an  exist- 
ing church,  and  it  was  held  that  it  was  never  intended  to  grant  a  li- 
cense to  select  that  particular  place  for  such  works,  to  the  nuisance  of 
the  church.  Moreover,  in  that  case,  the  disturbance  was  so  great  as 
not  only  to  render  the  church  uncomfortable,  but  almost  unendurable 
as  a  place  of  worship,  and  it  virtually  deprived  the  owners  of  the 
use  and  enjoyment  of  their  property.  We  do  not  understand  that 
it  was  intended  to  lay  down,  as  a  general  rule  applicable  to  all  cases 
of  comparatively  slight  though  real  annoyance,  naturally  and  neces- 


1340  SAWVKR    T'.    DAVIS. 

sarily  resulting  in  a  greater  or  less  degree  to  all  owners  of  propert}'' 
in  the  neighborhood  from  a  use  of  property  or  a  method  of  carry- 
ing on  a  lawful  business  which  clearly  falls  within  the  terms  and 
spirit  of  a  legislative  sanction,  that  such  sanction  will  not  afifect  the 
claim  of  such  an  owner  to  relief ;  but  rather  that  the  court  expressly 
waived  the  expression  of  an  opinion  upon  the  point. 

In  this  Commonwealth,  as  well  as  in  several  of  the  United 
States  and  in  England,  the  cases  already  cited  show  that  the  question 
is  settled  by  authority,  and  we  remain  satisfied  with  the  reasons  upon 
which  the  doctrine  was  here  established.  Courts  are  compelled  to 
recognize  the  distinction  between  such  serious  disturbances  as  ex- 
isted in  the  case  referred  to,  and  comparatively  slight  ones,  which 
differ  in  degree  only,  and  not  in  kind,  from  those  suffered  by  others 
in  the  same  vicinit3\  Slight  infractions  of  the  natural  rights  of  the 
individual  may  be  sanctioned  by  the  legislature  under  the  proper 
exercise  of  the  police  power,  with  a  view  to  the  general  good. 
Grave  ones  will  fall  within  the  constitutional  limitation  that  the  legis- 
lature is  only  authorized  to  pass  reasonable  laws.  The  line  of  dis- 
tinction cannot  be  so  laid  down  as  to  furnish  a  rule  for  the  settlement 
of  all  cases  in  advance.  The  difficulty  of  marking  the  boundaries 
of  this  legislative  power,  or  of  prescribing  limits  to  its  exercise,  was 
declared  in  Commomvealth  v.  Alger,  7  Cush.  53,  85,  and  is  imi- 
versally  recognized.  Courts,  however,  must  determine  the  rights 
of  parties  in  particular  cases  as  they  arise ;  always  recognizing  that 
the  ownership  of  property  does  not  of  itself  imply  the  right  to  use 
or  enjoy  it  in  every  possible  manner,  without  regard  to  correspond- 
ing rights  of  others  as  to  the  use  and  enjoyment  of  their  property ; 
and  also  that  the  rules  of  the  common  law,  which*  have  from  time 
to  time  been  established,  declaring  or  limiting  such  rights  of  use  and 
enjoyment,  may  themselves  be  changed  as  occasion  may  require. 
Mutin  V.  Illinois,  94  U.  S.  113,  134. 

In  the  case  before  us,  looking  at  it  for  the  present  without  re- 
gard to  the  decree  of  the  court  in  the  former  case  between  these 
parties,  we  find  nothing  in  the  facts  set  forth  which  show  that  the 
statutes  relied  on  as  authorizing  the  plaintiffs  to  ring  their  bell  (St. 
1883,  c.  84)  should  be  declared  unconstitutional.  It  is  virtually  a 
license  to  manufacturers,  and  others  employing  workmen,  to  carry 
on  their  business  in  a  method  deemed  by  the  legislature  to  be  con- 
venient, if  not  necessary,  for  the  purpose  of  giving  notice,  by  ring- 
ing bells,  and  using  whistles  and  gongs,  in  such  manner  and  at  such 
times  as  may  be  designated  in  writing  by  municipal  officers. 

The  defendants,  however,  contend  that  a  different  question 
arises  in  the  present  case,  where  the  plaintiff's  rely  upon  a  legislative 
sanction  given  to  acts  after  it  had  been  determined  by  this  court 
that  the  doing  of  them  was  attended  with  a  peculiar  injury  to  the 
defendants,  which  entitled  them  to  a  remedy  as  for  a  nuisance. 
There  can  be  no  doubt  that  such  sanction  would  be  a  good  defence 
to  an  indictment  for  a  nuisance ;  or  to  a  proceeding  instituted  by  an 
individual,  whose  only  grievance  was  that  he  had  sustained  special 
damage  in  consequence  of  being  disturbed  in  the  enjoyment  of  some 


SAWYER   V.   DAVIS.  1 34 1 

public  right,  such  as  a  right  to  travel  upon  a  highway  or  river.  His 
public  right  may  clearly  be  regulated  and  controlled  by  the  legisla- 
ture, after  a  decision  by  the  court  as  well  as  before.  Cormnomvealth 
V.  Essex  Co.,  13  Gray,  239,  247.  But  the  argument  is  urged  upon 
with  great  force,  that  in  the  present  case  there  had  been  a  judicial 
determination  that  the  ringing  of  the  bell,  at  the  hours  now  author- 
ized by  the  terms  of  the*  statute  and  the  designation  of  the  select- 
men, was  a  private  nuisance  to  the  defendants,  not  growing  out  of 
any  public  right,  and  that  the  statute  ought  not,  as  a  matter  of  con- 
struction, to  be  held  applicable  to  this  case ;  or,  if  such  is  its  neces- 
sary construction,  that  it  is  unconstitutional,  as  interfering  with  their 
vested  rights. 

In  the  first  place,  we  can  have  no  doubt  that  the  statute  by  its 
just  construction  is  in  its  terms  applicable  to  the  present  case.  It  is 
undoubtedly  true  that  neither  a  general  authority  nor  a  particular 
license  is  to  be  so  construed  as  to  be  held  to  sanction  what  was  not 
intended  to  be  sanctioned.  A  general  authority  is  not  necessarily 
to  be  treated  as  a  particular  license ;  Commomvcalth  v.  Kidder,  107 
Mass.  188 ;  and  in  some  cases,  even  where  a  particular  license  or 
authority  has  been  given,  as  to  keep  an  inn,  alehouse,  or  slaughter- 
house in  a  particular  place,  which  is  specified,  this  authority  has  not 
been  deemed  to  sanction  the  keeping  of  it  in  an  improper  manner. 
Rex  V.  Cross,  2  C.  &  P.  483.  Commonwealth  v.  McDonough,  13 
Allen,  581,  584.  State  v.  Mullikin,  8  Blackf.  260.  United  States  v. 
Elder,  4  Cranch.  C.  C.  507.  And,  ordinarily,  a  statute  which  au- 
thorizes a  thing  to  be  done,  which  can  be  done  without  creating  a 
nuisance,  will  not  be  deemed  to  authorize  a  nuisance.  In  such  case, 
it  is  not  to  be  assumed  that  it  was  contemplated  by  the  legislature 
that  what  was  so  authorized  would  have  the  necessary  efifect  to 
create  a  nuisance,  or  that  it  would  be  done  in  such  a  manner  as  to 
create  a  nuisance ;  and,  if  a  nuisance  is  created,  there  will  in  such 
cases  ordinarily  be  a  remedy  at  law  or  in  equity.  Eames  v.  Neti.' 
England  Worsted  Co.,  11  Met.  570.  Haskell  v.  Neiv  Bedford,  108 
Mass.  208,  215.  Commomvealth  v.  Kidder,  107  Mass.  188.  But, 
on  the  other  hand,  the  authority  to  do  an  act  must  be  held  to  carry 
with  it  whatever  is  naturally  incidental  to  the  ordinary  and  reason- 
able performance  of  that  act.  When  the  legislature  authorized  fac- 
tory bells  to  be  rung,  it  must  have  been  contemplated  that  they 
would  be  heard  in  the  neighborliood.  That  is  a  natural  and  in- 
evitable consequence.  The  legislature  must  be  deemed  to  have  de- 
termined that  the  benefit  is  greater  than  the  injury  and  annoyance ; 
and  to  have  intended  to  enact  that  the  public  must  submit  to  the 
disturbance,  for  the  sake  of  the  greater  advantage  that  would  result 
from  this  method  of  carrying  ort  the  business  of  manufacturing.  It 
must  be  considered,  therefore,  in  this  case,  that  a  legislative  sanc- 
tion has  been  given  to  the  very  act  which  this  court  found  to  create 
a  private  nuisance. 

It  is  then  argued  that  the  Legislature  cannot  legalize  a  nuisance, 
and  cannot  take  away  the  rights  of  the  defendants  as  they  have 
been  ascertained  and  declared  by  this  court ;  and  this  is  undoubtedly 


1342 


SAWYER   v.    DAVIS. 


true,  so  far  as  such  rights  have  become  vested.  For  example,  if  the 
plaintiff  under  an  existing  rule  of  law  has  a  right  of  action  to  re- 
cover damages,  for  a  past  injury  suffered  by  him,  his  remedy  can- 
not be  cut  off  by  an  act  of  the  legislature.  But,  on  the  other  hand, 
the  legislature  may  define  what  in  the  future  shall  constitute  a  nui- 
sance, such  as  will  entitle  a  person  injured  thereby  to  a  legal  or 
equitable  remedy,  and  may  change  the  existing  common-law  rule 
upon  the  subject.  It  may  declare,  for  the  future,  in  what  manner  a 
man  may  use  his  property  or  carry  on  a  lawful  business  without 
being  liable  to  an  action  in  consequence  thereof ;  that  is,  it  may  de- 
fine what  shall  be  a  lawful  and  reasonable  mode  of  conduct.  This 
legislative  power  is  not  wholly  beyond  the  control  of  the  courts,  be- 
cause it  is  restrained  by  the  constitutional  provision  limiting  it  to 
wholesome  and  reasonable  laws,  of  which  the  court  is  the  final 
judge  ;  but,  within  this  limitation,  the  exercise  of  all  the  police  power 
of  the  legislature  will  apply  to  all  within  the  scope  of  its  terms  and 
spirit.  The  fact  that  the  rights  of  citizens,  as  previously  existing, 
are  changed,  is  a  result  which  always  happens ;  it  is  indeed  in  order 
to  change  those  rights  that  the  police  power  is  exercised.  So  far  as 
regards  the  rights  of  parties  accruing  after  the  date  of  the  statute, 
they  are  to  be  governed  by  the  statute;  •  leir  rights  existing  prior  to 
that  date  are  not  affected  by  it.  To  iimstrate  this  view,  let  it  be 
supposed  that  the  case  between  the  present  parties  in  its  original 
stage  has  been  determined  in  favor  of  the  manufacturers,  under 
which  decision  they  would  have  had  a  right  to  ring  their  bell ;  and 
that  afterwards  a  statute  had  been  passed  providing  that  manufac- 
turers should  not  ring  bells  except  at  such  hours*as  might  be  ap- 
proved by  the  selectmen;  and  that  these  manufacturers  had  then 
proceeded  to  ring  their  bells  at  other  hours,  not  included  in  such 
approval.  It  certainly  could  not  be  said  that  they  had  vested  a  right 
to  do  so,  under  the  decision  of  the  court. 

The  injunction  which  was  awarded  by  the  court,  upon  the  facts 
which  appeared  at  the  hearing,  did  not  imply  a  vested  right  in  the 
present  defendants  to  have  it  continued  permanently,  .  Though  a 
final  determination  of  the  case  before  the  court,  and  though  binding 
and  imperative  upon  the  present  plaintiffs,  and  enforceable  against 
them  by  all  the  powers  vested  in  a  court  of  equity,  yet  they  were  at 
liberty  at  any  time,  under  new  circumstances  making  it  inequitable 
for  it  to  be  longer  continued,  to  apply  to  the  court  for  a  review  of 
the  case  and  a  dissolution  of  the  injunction. 

Demurrer  overruled.^ 


^Accord:  Miirtha  v.  Lovewell,  166  Mass.  391  (1896),  injunction  refused 
against  persons  melting  iron  under  license  from  mayor  and  aldermen;  Levin 
V.  Goodwin,  191  Mass.  341  (1906),  licensed  bowling  alley  causing  only  such 
noise,  while  considerable  and  annoying  to  neighbors,  as  is  incident  to  such 
alley  properly  operated.  But  the  legislature  may  "authorize  small  nuisances 
without  compensation  not  great  ones."  Bacon  v.  Boston,  154  Mass.  100 
(1891),  serious  disturbance  of  adjacent  owner's  enjoyment  of  his  premises  by 
offensive  odors  and  percolation  of  filthy  matter,  caused  by  the  city's  opera- 
tion under  statutory  power  of  a  sewage  disposal  plant,  while  not  a  taking  of 
the  land  for  which  compensation  was  recoverable  under  the  statute,  was  ac- 


SAWYER    V.    DAVIS.  1343 

tionable  in  an  action  of  tort,  see  Ganster  v.  Met.  Elec.  Co.,  214  Pa.  628  (1906), 
and  Baltimore  &  Potomac  R.  Co.  v.  Church,  108  U.  S.  317  (1883),  and 
Shively  v.  Cedar  Rapids  &c.  R.  Co.,  74  Iowa  169  (1887).  In  Cohen  v.  Rit- 
tirniann,  139  S.  W.  59  (Tex.  Civ.  App.  1911),  it  is  held  that  a  municipal 
license  under  legislative  power  will  not  give  right  to  carry  on  a  business 
endangering  the  lives,  health  or  property  of  its  citizens ;  see  also  Towaliga 
Falls  Power  Co.  v.  Sims,  6  0a.  App.  749  (1909),  doubting  the  power  of  the 
legislature  to  "authorize  the  doing  of  a  thing  whjch  in  its  nature  would  tend 
to  destroy  or  materially  impair  the  morals,  the  health  or  the  safety  of  the 
people." 


Part  3 


The  Effect  of  the  Plaintiff's  Fault  as  a  Bar  to  Re- 
covery for  Injury  Caused  in  Part  Thereby. 


VIRTUE  V.  BIRDE. 

Court  of  King's  Bench,  1677.    2  Lev.  196. 

Case,  that  whereas  the  defendant  had  hired  him  to  carry  a  load  of  tim- 
ber from  Woodbridge  to  Ipswich  to  be  laid  there  at  any  place  the  defendant 
should  appoint,  and  that  he  gave  notice  to  the  defendant  that  he  would  carry 
it  such  a  day,  and  requested  the  defendant  at  Woodbridge  to  appoint  where 
it  should  be  laid,  and  that  accordingly  he  carried  it  to  Ipswich,  and  that  the 
defendant  appointed  no  place  where  it  should.be  laid,  but  made  the  horses 
of  the  plaintiff  being  hot  stay  so  long  in  the  cart,  that  they  took  cold, 
whereby  some  of  them  died,  and  the  rest  were  spoiled.  And  after  verdict 
for  the  plaintiff  upon  noi  culp.,  judgment  was  staid ;  because  the  action  lies 
not.  For,  1.  he  might  have  taken  his  horses  out  of  his  cart,  a«d  have  walked 
them  up  and  down,  or  put  them  into  the  stable;  2.  As  soon  as  he  came  there, 
and  found  no  place  appointed  by  the  defendant,  he  might  have  unladen  the 
timber  in  any  convenient  place,  and  returned.  And  therefore  the  injury 
which  the  horses  received  is  owing  to  himself,  and  through  his  own  default. 


WARD  z:  AYRE. 
Court  of  King's  Bench,  1615.     Cro.  Jac.  266. 

Trespass  of  assault  and  batterj^,  etc.,  quod  cumulum  pecuniae,  contain- 
ing five  marks,  cepit,  etc.  The  case  was :  The  plaintiff  and  defendant  being 
at  play,  the  plaintiff  thrust  his  money  into  the  defendant's  heap  and  mixed 
it,  and  the  defendant  kept  it  all;  whereupon  (they  striving  for  the  money) 
plaintiff  brought  this  action. 

The  whole  Court  were  of  opinion,  in  regard  the  plaintiff's  own  money 
cannot  be  known,  and  this  his  intermeddling  is  his  own  act  and  his  own 
wrong,  that  by  the  law  he  shall  lose  all;  for,  if  it  were  otherwise,  a  man 
might  then  be  made  to  be  trespasser  against  his  will,  by  the  taking  of  his 
own  goods;  therefore,  to  avoid  that  inconvenience,  the  law  will  justify  the 
defendant's  detaining  of  all :  and  so  it  is  of  an  heap  of  corn  voluntarily  in- 
termingled with  another  man's.  Whereupon  the  rule  of  the  Court  was,  quod 
querens  nihil  capiat  per  billam. 


Lord  Kenyon,   C.  J.,   in  Paslcy   v.   Freeman,  2   Term   Rep.   51    (1788) 

1344 


CRUDEX   V.   FF.XTHAM.  1345 

"Undoubtedly  where  the  common  prudence  and  caution  of  man  are  sufficient 
to  guard  him  the  law  will  not  protect  him  in  his  negligence.'" 


CHAPTER  I. 

The  Plaintiff's  Deliberate  Choice  to  Encounter  a  Known  Risk 
Created  by  the  Defendant. 


CRUDEX  r.  FEXTHAM. 

Court  of  King's  Bench,  at  Xisi  Prius,  1799.     2  Espinasse's  R.  685. 

This  was  an  action  for  negligently  driving  the  defendant's  chaise,  by 
\\hich  the  plaintiff's  horse  was  killed. 

The  case  in  evidence  was,  the  defendant  was  returning  to  town  in  a  one- 
horse  chaise,  with  his  family,  from  Tooting  in  Surry.  He  was  driving  on 
the  wrong  side  of  the  load.  The  plaintiiif's  servant  was  on  horseback,  going 
from  London.  The  road  was  of  very  considerable  breadth,  so  that  the  serv- 
ant could  have  passed  without  any  difficulty ;  but  he,  without  any  reason, 
but  conceiving  it  to  be  the  right  of  the  road,  crossed  over  to  the  side  where 
the  chaise  was  driving,  that  being  the  right  side  of  the  road;  and  endeavor- 
ing to  pass  between  the  chaise  and  the  foot-way  the  horse  was  killed. 

Lord  Kenyon,  in  summing  up  to  the  jury,  told  them,  that  what  was 
called  the  law  of  the  road  was  introduced  for  general  convenience :  That 
where  carriages  were  driving  on  a  narrow  road,  or  where  accidents  might 
happen,  it  ought  to  be  adhered  to;  and  in  driving  at  night  the  rule  ought  to 
be  strictly  adhered  to,  and  never  departed  from,  as  it  was  the  only  mode  by 
which  accidents  could  be  avoided :  But  he  thought  that  where  the  road  was 
sufficiently  broad  for  all  persons  and  carriages  to  pass,  though  a  carriage 
might  be  driving  on  the  wrong  side  of  the  road,  if  there  was  sufficient  room 
for  other  carriages  and  horses  to  pass  on  the  other,  a  person  was  not  justi- 
fied in  crossing  out  of  the  way.  in  order  to  assert  what  he  termed  the  right 
of  the  road.  It  was  putting  himself  voluntarily  into  the  way  of  danger,  and 
the  injury  was  of  his  own  seeking.  That  seemed  to  be  the  case  here :  but 
the  jury  were  to  be  of  that  opinion;  if  they  thought  otherwise  they  would 
find  for  the  plaintiff. 

The  jury  found  a  verdict  for  the  plaintifif. 

Erskine  and  for  the  plaintiff. 

Garrow  for  the  defendant. 

A  rule  was  afterwards  obtained  for  a  new  trial.  In  Easter  term  it  came 
on,  when  the  Lord  Chief  Justice  delivered  himself  in  nearly  the  same  terms; 
but  added,  that  after  the  finding  of  the  jury,  as  it  was  a  question  of  public 
convenience,  the  verdict  had  better  rest  as  it  was. 

New  trial  refused. 


'  See  also,  the  cases  and  notes  in  Book  II,  Part  IV,  Chapter  1   (d). 


1346  CLAYARDS  V.   DETHICK. 

CLAY  v.  WOOD. 
Court  of  King's  Bench,  at  Nisi  Prins,  1803.     5  Espinasse's  R.,  44. 

This  was  an  action  on  the  case,  for  negligently  driving  a  chaise  against 
a  certain  horse  of  the  defendant's,  on  which  the  plaintiff's  servant  then  rode, 
by  which  he  had  his  thigh  broke ;  in  consequence  of  which  he  died. 

The  facts  were,  that  the  plaintiff's  servant  was  riding  on  the  wrong  side 
of  the  road;  but  near  the  middle  of  it.  The  defendant  was  the  owner  of  a 
chaise,  then  driven  by  his  servant,  coming  out  of  another  road,  and  crossing 
the  road  over  to  that  side  of  the  road  on  which  the  servant  was  riding,  which 
was  the  proper  side  of  the  road  for  the  defendant.  In  so  crossing  over,  the 
shaft  of  the  chaise  struck  the  horse  in  the  thigh,  and  broke  it. 

The  defendant's  counsel  replied.  That  it  was  the  duty  of  the  servant  to 
have  kept  on  his  proper  side ;  and  that  the  accident  being  occasioned  by  his 
being  so  out  of  his  place,  the  defendant  was  not  liable. 

Lord  Ellenborough  said.  That  the  circumstance  of  the  person  being  on 
the  wrong  side  of  the  road  was  not  sufficient  to  discharge  the  defendant ; 
for  though  a  person  might  be  on  his  wrong  side  of  the  road,  if  the  road  was 
of  sufficient  breadth,  so  that  there  was  full  and  ample  room  for  the  party  to 
pass,  he  was  of  opinion  he  was  bound  to  take  that  course  which  should  carry 
him  clear  of  the  person  who  was  on  his  wrong  side;  and  that  if  any  injury 
happened,  by  running  against  such  person,  he  would  be  answerable.  A  per- 
son being  on  his  wrong  side  of  the  road  could  not  justify  another  in  wan- 
tonly doing  an  injury,  which  might  be  avoided.  Thejjuestion  therefore  to  be 
left  to  the  jury  was.  Whether  there  was  such  room,  that  though  the  plain- 
tiff's servant  was  on  his  wrong  side  of  the  road,  there  was  sufficient  room 
for  the  defendant's  carriage  to  pass  between  the  plaintiff's  horse  and  the 
other  side  of  the  road?  If  they  were  of  opinion  that  there  was,  the  plain- 
tiff was  entitled  to  recover. 

Verdict  for  the  plaintiff. 


CLAYARDS  v.  DETHICK. 
Court  of  Queen's  Bench,  1848.    12  Q.  B.  (N.  S.)  439. 

On  the  trial  before  Lord  Denman,  C.  J.,  it  appeared  that  the 
plaintiff  was  the  proprietor  of  a  livery  stable  at  Gower  Mews.  The 
Mews  communicated  with  the  street  by  a  passage  and  had  no  other 
outlet.  The  defendant,  acting  under  the  orders  of  the  Commissioner 
of  Sewers,  was  deepening  the  sewer  in  Gower  street,  for  this  pur- 
pose they  made  an  open  trench  which  obstructed  the  passage  except 
for  a  space  of  four  feet  on  one  side  and  two  and  a  half  feet  on  the 
other.  Before  the  day  on  which  the  accident  happened  the  commis- 
sioners had  given  notice  to  the  owners  of  stables  in  the  Mews  that 
the  trench  would  remain  open  for  a  few  days  and  that  they  must 
put  up  with  it  and  had  advised  them  to  get  other  stables. 

On  the  day  of  the  accident  excavators  had  thrown  earth  from 
the  trench  unavoidably,  as  was  represented  by  the  defendants,  upon 


CLAYARDS  1'.   DETHICK.  1347 

the  four  foot  space  and  to  the  hei^c^htli  of  four  feet.  The  plaintiff 
was  bringing  one  of  his  horses  out  of  the  Mews  and  was  about  to 
put  planks  over  the  trench  when  one  of  the  defendants  said  he 
would  not  be  answerable  for  anything  that  happened  in  taking  the 
horse  over  in  that  manner.  The  plaintiff  then  asked  how  he  was 
to  do  it,  and  said  he  must  get  the  horse  out.  The  defendant  said, 
"Take  him  out  on  the  other  side  (where  the  earth  had  been  thrown) 
and  I  will  be  answerable."  The  plaintiff  with  assistance  led  the 
horse  out.  A  little  later  the  plaintiff*  tried  to  get  another  horse 
out  in  the  same  way  but  the  horse  fell  into  the  trench  and  was 
killed.  There  w-as  evidence  on  the  part  of  the  defendant  that  on 
the  second  occasion  their  men  cautioned  the  plaintiff  not  to  make 
the  attempt,  that  he  would  not  only  endanger  his  horse  but  the 
lives  of  the  men  in  the  trench,  but  he  said  he  would  go  over.  This 
statement  was  denied  on  the  part  of  the  plaintiff. 

The  Lord  Chief  Justice  in  summing  up  observed  "that,  if  the 
defendants'  witnesses  were  to  be  believed,  and  the  plaintiff'  on  the 
second  occasion  had,  in  defiance  of  warning,  incurred  an  evidently 
great  danger,  this  was  a  rashness  on  his  part  which  would  excuse 
the  defendants :  but  that  it  could  not  be  the  plaintiff's  duty  to  re- 
frain altogether  from  coming  out  of  the  mews  merely  because  the 
defendants  had  made  the  passage  in  some  degree  dangerous :  that  the 
defendants  were  not  entitled  to  keep  the  occupiers  of  the  mews  in 
a  state  of  siege  till  the  passage  was  declared  safe,  first  creating  a 
nuisance  and  then  excusing  themselves  by  giving  notice  that  there 
was  some  danger:  though,  if  the  plaintiff  had  persisted  in  running 
upon  a  great  and  obvious  danger,  his  action  could  not  be  mamtained. 
And  he  left  it  to  the  jury  to  say  whether  or  not  the  plaintiff  had 
so  acted.    Verdict  for  plaintiff :  damages  i20. 

Miller,  in  Trinity  term,  1847,  moved  for  a  new  trial  on  the 
ground  of  misdirection.  He  contended  that  the  plaintiff  here  com- 
mitted such  fault  by  attempting  to  bring  his  horse  out  of  the  mews, 
if  the  passage  was  at  all  dangerous ;  and  that,  instead  of  incurring 
danger  even  if  it  had  been  slight,  he  should  have  kept  his  horse  in 
the  stable,  and  brought  an  action,  if  necessary,  for  the  obstruction. 
(Lord  Den  man,  C.  J.  I  thought  the  plaintiff  might  be  justified  in 
incurring  a  moderate  danger,  and  that  the  facts  proved  as  to  the 
first  coming  out  shewed  it  to  be  no  more.)     A  rule  nisi  was  granted. 

Knowles  and  Corric  now  showed  cause.  The  Lord  Chief  Jus- 
tice left  to  the  jury,  substantially,  whether  the  plaintiff  was  in  fault 
at  all.  And  he  was  not.  He  could  not  afford  to  keep  his  horse  at 
home.  (Coleridge  J.  If  the  horse  w-as  wrongfully  detained  at 
home,  an  action  lay  for  that.) 

Miller,  contra.  Here  the  plaintiff  had  an  obvious  danger  before 
him,  and  w^as  not  justified  in  encountering  it  to  avoid  a  delay.  For 
that  he  might  have  had  a  legal  remedy :  if  he  chose  rather  to  incur 
a  danger,  he  might  do  so,  but  not  at  the  cost  of  the  defendants. 
If  an  extraordinary  emergency  had  arisen,  as  a  fire,  the  case  might 
have  been  different.  (Patteson  J.  Suppose  the  horse  had  been 
coming  home ;  must  he  have  been  kept  out  of  the  stable  till  the 


1348      '  CLA YARDS  Z'.  DETHICK. 

entrance  was  pronounced  safe?)  The  plaintiff  mii:;ht  have  placed 
the  horse  at  livery  and  brought  an  action  for  the  keep. 

Patteson,  J.  The  question  arises  on  the  declaration ;  because 
it  is  there  said  that  the  defendants  made  the  trench,  and  laid  rub- 
bish, and  neglected  to  fence,  and  that  "by  means  of  the  premises" 
the  plaintiff's  horse  fell  and  was  killed.  The  averment,  "by  means 
of  the  premises,"  becomes  parcel  of  the  issue  on  Not  guilty.  And, 
such  being  the  issue,  we  are  to  say  whether  it  was  properly  left 
to  the  jury.  Now  the  defendants  had  clearly  no  right  to  leave  a 
trench  open  in  the  passage  to  this  mews  without  a  proper  fence, 
and,  having  done  so,  to  tell  the  plaintiff  "you  shall  keep  your  horse 
in  the  stable  till  we  inform  you  that  you  may  remove  him."  But 
whether  or  not  the  plaintiff  contributed  to  the  mischief  that  hap- 
pened by  want  of  ordinary  caution,  is  a  question  of  degree.  If  the 
danger  was  so  great  that  no  sensible  man  would  have  incurred  it, 
the  verdict  must  be  for  the  defendants :  and  the  case  was  rightly 
put  to  the  jury  as  depending  on  this  question.  The  plaintiff  here 
had  passed  safely  in  the  afternoon  over  the  place  at  which  the  acci- 
dent happened.  According  to  the  evidence  for  the  defendants,  he 
was  told,  on  attempting  to  pass  in  the  evening,  that  he  could  not 
do  it  without  danger  to  himself  and  the  men  below.  The  jury, 
however,  do  not  appear  to  have  believed  this  statement.  The  whole 
question  was,  whether  the  danger  was  so  obvious  that  the  plaintiff 
could  not  with  common  prudence  make  the  attempt.  That  was 
properly  put  to  the  jury ;  and  they  have  found  for  the  plaintiff, 

Coleridge  J.  The  plaintiff  was  not  boufid  to  abstain  from  pur- 
suing his  livelihood  because  there  was  some  danger.  It  was  neces- 
sary for  the  defendants  to  shew  a  clear  danger  and  a  precise  warn- 
mg.  Whether  these  facts  existed  or  not,  was  for  the  consideration 
of  the  jury;  and  if  the  jury  disbelieved  them,  the  plaintiff  was  en- 
titled to  the  verdict. 

Lord  Denmax  C.  J.  The  case  was  complicated ;  and  there  was 
contradiction  on  almost  every  point.  I  have  no  doubt  that  I  left  it 
to  the  jury  to  say  whether  the  plaintiff  had  used  ordinary  care ;  for 
I  always  leave  cases  of  the  kind  in  that  manner,  I  certainly  told 
the  jurv  that  the  plaintiff  was  not  bound  to  keep  his  horse  back  un- 
less the  danger  was  imminent :  and  I  believe  they  gave  credit  to  the 
plaintiff's  evidence,  and  not  to  the  evidence  for  the  defendants. 

Rule  discharged.^ 


^  Compare  Ponieroy  v.  Westfield,  ante,  p.  337,  and  cases  cited  in  the  note 
thereto. 

See  also,  Lord  Bramwell's  vigorous  criticism  of  the  principal  case  in  Lax 
V.  Darlington,  L.  R.  5  Ex.  Div.  28  (1879),  p.  35,  and  in  some  observations 
printed  in  Horace  Smith  on  Negligence,  2nd  Ed.,  Appendix  B.,  p.  275. 

For  the  decisions  on  the  somewhat  similar  case  of  a  passenger  on  a  rail- 
way train,  who  being  confronted  with  the  real  or  apparent  alternatives  of 
being  carried  beyond  his  station  or  alighting  while  the  train  is  in  motion, 
chooses  the  latter,  see  cases  cited  in  note  3  to  Osborne  v.  London  etc.  R.  Co., 
ante,  page  344. 


I 


HARDING  V.  PHILA.  RAPID  TEL\NS.  CO.  1349 

HARDING  V.  PHILA.  RAPID  TRANSIT  CO. 

Supreme  Court  of  Pennsylvania,  1907.     217  Pa.  St.  69. 

Per  Curiam.  There  was  no  evidence  of  defendant's  negli- 
gence. The  plaintiff  had  no  recollection  of  the  accident  and  the 
witnesses  on  his  side  who  saw  it  only  said  in  general  terms  that 
when'  the  two  cars  passed  each  other  the  running  board  of  the  one 
on  which  plaintiff  stood  was  crowded  and  several  men  jumped,  fell 
or  were  pushed  or  brushed  off.  A  witness  for  the  defense  testified 
that  as  the  cars  passed  a  man  on  plaintiff's  car  extended  his  hand, 
grasped  the  other  car  and  was  thrown  backwards  against  the  men 
behind  him,  including  plaintiff.  This  is  the  most  plausible  account 
that  was  given,  and  apart  from  it  there  is  nothing  to  show  that  plain- 
tiff on  the  approach  of  the  car  did  not  lose  his  nerve  and  jump  or 
fall  from  the  car. 

Under  the  circumstances  there  was  no  presumption  of  negli- 
gence on  the  part  of  defendant,  but  even  if  it  had  been  clearly 
shown  it  would  have  been  altogether  immaterial.  Plaintiff  was  rid- 
ing voluntarily  in  a  place  of  manifest  danger,  and  in  so  doing  he 
assumed  all  the  risks  of  the  situation.  One  who  takes  a  position  of 
manifest  and  imminent  danger  assumes  the  risk  of  his  position 
whether  he  could  have  got  a  safer  place  or  not :  Bard  v.  Traction 
Co.,  1/6  Pa.  97;  Malpass  v.  Pass.  R.  R.  Co.,  189  Pa.  599. 

It  is  argued  by  appellant  that  he  was  not  warned  by  the  con- 
ductor of  the  danger  of  his  position.  But  the  lowered  bar  was  suffi- 
cient warning  in  itself.  It  was  notice  that  the  running  board  on 
that  side  was  a  place  of  danger  and  that  passengers  not  expected, 
nor  so  far  as  the  company  could  control  the  situation  permitted, 
to  use  it  even  for  the  limited  purpose  of  getting  on  or  off  the  car 
for  which  the  running  board  is  intended.  The  alternative  offered 
by  plaintiff  of  having  to  wait  for  another  car  and  thus  being  late 
in  getting  home  is  no  justification.  In  any  country  than  this,  plain- 
tiff would  have  been  forcibly  prevented  from  getting  on  the  car  at 
all  after  the  number  of  passengers  had  reached  the  limit  of  safety 
or  even  of  convenience.  To  attempt  the  enforcement  of  such  a 
regulation  here  would  certainly  lead  to  continual  quarrels  and 
breaches  of  the  peace.  A  reasonable  amount  of  concession,  there- 
fore, to  the  American's  impatience  of  control  and  confidence  in  his 
own  ability  to  take  care  of  himself  should  not  be  visited  with  pun- 
ishment by  the  infliction  of  penalties  on  the  company  for  the  pas- 
senger's own  fault.  It  must-  be  definitely  recognized  that  one  who 
undertakes  to  ride  on  the  running  board  outside  of  a  lowered  bar, 
is  negligent  per  se  and  can  not  recover  for  injuries  incident  to  his. 
position,  whether  he  could  have  got  a  safer  position  or  not. 

Judgment  afifirmed.^ 


^  See  however.  Watson  v.  Portland  etc.  Ry.  Co.,  and  Cattano  v.  Metro- 
politan Street  R.  Co.,  cited  in  note  2  to  Southivick  v.  Hall  and  Upson  Co., 
ante. 


I35O-  TAYLOR  V.    HOME   TELEPHONE   CO. 

ECKERT  V.  LONG  ISLAND  RAILROAD  CO.^  ante,  page  345. 


LIMING  V.  ILLINOIS   CENTRAL   RAILWAY   COMPANY/ 

ante,  page  348. 


TAYLOR  V.  HOME  TELEPHONE  CO. 
Supreme  Court  of  Michigan,  1910.     163  Mich.  458. 

It  is  alleged  in  the  declaration  and  proved  by  the  evidence  that 
the  defendant  company  had  negligently  removed  the  service  cock 
from  a  city  water  main  and  that  as  a  consequence  water  was  forced 
into  the  open  second  story  window  of  a  building  into  apartments 
of  which  the  plaintiff  was  the  caretaker.  In  attempting  to  close 
the  window  the  plaintiff  was  knocked  down, by  the  force  of  the 
stream  of  water  and  her  clothing  was  soaked,  as  a  consequence  giv- 
ing her  a  severe  cold  and  rheumatism. 

The  court  directed  a  verdict  for  the  defendant  and  judgments 
were  entered  thereon.  The  case  presents  the  question  wliether,  con- 
ceding the  defendant  to  have  been  negligent,  the  plaintiff"  is  entitled 
to  the  verdict  of  the  jury. 

OsTRANDER,  J.  (after  stating  the  facts).  The  plaintiff's  act 
was  voluntary,  the  wetting  she  got  was  inevitable.  Did  she,  as  de- 
fendant contends,  assume  all  the  consequences  of  the  wetting,  what- 
ever they  might  be?  The  principle  expressed  in  the  maxim,  "Volenti 
non  at  injuria,"  is  subject  to  qualifications,  which  are  sometimes 
stated  as  qualifications  of  the  rule,  but  are  quite  as  often  recognized 
as  rules  in  determining  the  proximate  cause  of  an  injury  and  the 


^Accord:   Dixon  v.  New  York,  N.  H.  &  H.  R.  Co.,  207  Mass.  126  (1910). 

^  In  addition  to  the  cases  cited  in  the  notes  ante,  see  accord:  Pullman 
Palace  Car  Co.  v.  Laack.  143  111.  242  (1892);  Pcnna.  Co.  v.  McCaffrey.  139 
Ind.  430  (1894);  Louisville  &c.  R.  Co.  v.  Seibert,  21  Ky.  L.  1603  (1900); 
Winczewski  v.  Winona  &  IV.  R.  Co.,  80  Minn.  245  (1900)  ;  Dailcv  v.  Burling- 
ton &  M.  etc.  R.  Co.,  58  Nebr.  396  (1899)  ;  Texas  Central  R.  Co.  v.  Bender, 
32  Tex.  Civ.  App.  568  (1903)  ;  Kelley  v.  Chicago,  M.  &  St.  P.  R.  Co.,  50  Wis. 
381  (1880)  ;  Fisher  v.  Chesapeake  &  Ohio  R.  Co.,  104  Va.  635  (1905).  But  if 
the  injury  threatened  to  the  property,  in  this  case  of  the  plaintiff's  employer, 
be  slight  and  the  risk  to  the  plaintiff  great,  he  caa  not  recover,  Judkins  v. 
Maine  Cent.  R.  Co.,  80  Maine  417  (1888). 

Contra,  Condiff  v.  Kansas  City.  Ft.  S.  &  G.  R.  Co.,  45  Kans.  256  (1891)  ; 
Eversole  v.  Wabash  R.  Co.,  249  Mo.  523  (1913)  ;  Morris  v.  Lake  Shore  & 
M.  S.  R.  Co.,  148  N.  Y.  182  (1S96)  :  Malthie  v.  Belden,  167  N.  Y.  307  (1901)  ; 
Scale  V.  Gulf.  C.  &  S.  F.  R.  Co.,  65  Tex.  274  (1886).  In  Chattanooga  Light 
&■  Power  Co.  v.  Hodges,  109  Tenn.  331  (1902),  the  court,  while  refusing  to 
decide  between  the  two  views,  held  that  the  defendant  could  not  have  con- 
templated that  the  plaintiff  would  return  to  his  master's  burning  building  in 
an  effort  to  communicate  with  him  by  the  telephone  therein  and  so  even  if 
the  fire  was  started  by  the  defendant's  negligence,  such  negligence  was  not 
the  proximate  cause  of  the  plaintiff's  negligence. 


CAMPBELL   v.    SEAMAN.  I35I 

contributory  negligence  of  the  injured  person.  Courts  have  fre- 
quently refused  to  so  apply  the  principle  as  to  deny  to  one  who  has 
at  actual  risk  of  injury  sought  to  save  property  or  a  person  from 
damage  or  destruction  the  right  to  recover  damages.  A  valuable 
collection  of  authorities  appears  in  the  notes  to  Fisher  v.  Raihvay 
Co.  (Va.),  2  L.  R.  A.  (N.  S.)  954.  See  also,  i  Thompson  on  Law 
of  Negligence,  §  185  et  seq. 

In  Cook  V.  Johnston,  58  Mich.  437  (25  N.  W.  388,  55  Am. 
Rep.  703),  the  plaintiff  entered  a  burning  shed  to  release  a  horse 
belonging  to  her  husband  and  was  burned.  Under  the  circumstances, 
and  as  matter  of  law,  the  right  to  recover  was  denied. 

In  these,  as  in  all  of  the  cases  which  have  been  examined,  there 
was,  or  was  supposed  to  be,  a  chance,  more  or  less  probable,  of  es- 
caping any  direct  consequences  of  defendant's  negligence.  In  the 
case  at  bar  no  such  chance  existed  or  could  have  been  supposed  to 
exist.  May  the  plaintiff  say  that  the  consequences  other  than  a 
mere  wetting  were  not  anticipated  by  her,  and  therefore  the  peril 
of  them  was  not  assumed,  and  at  the  same  time  insist  that  they 
were  the  direct  result  of  defendant's  negligence — of  the  single  oc- 
currence— and  defendant  must  respond  in  damages  ?  We  are  of  the 
opinion  that  she  may  not  do  so,  and  that  the  maxim  referred  to 
must  be  applied. 


CAMPBELL  et  al.  v.  SEAMAN. 
Court  of  Appeals  of  New  York,  1876.    63  N.  Y.  568. 

The  action  was  brought  to  recover  damages  resulting  from  de- 
fendant's use  of  his  land  as  a  brick  kiln  for  the  manufacture  of 
bricks,  which  was  alleged  to  be  a  nuisance  by  reason  of  the  sulphur- 
ous acid  gas  required  therefor,  and  to  restrain  the  continuance  of 
such  nuisance, 

Earle,  J.  (After  determining  that  the  brick  yard  as  operated 
was  a  nuisance.)  But  every  person  is  bound  to  make  a  reasonable 
use  of  his  property  so  as  to  occasion  no  unnecessary  damage  or 
annoyance  to  his  neigh])or.  If  he  make  an  unreasonable,  unwarrant- 
able or  unlawful  use  of  it,  so  as  to  produce  material  annoyance,  in- 
convenience, discomfort  or  hurt  to  his  neighbor,  he  will  be  guilty 
of  a  nuisance  to  his  neighbor.  And  the  law  will  hold  him  responsi- 
ble for  the  consequent  damage.  As  to  what  is  a  reasonable  use  of 
one's  own  property  can  not  be  defined  by  any  certain  general  rules, 
but  must  depend  upon  the  circumstances  of  each  case.  A  use  of 
property  in  one  locality  and  under  some  circumstances  may  be  law- 
ful and  reasonable,  which  under  other  circumstances,  would  be  un- 
lawful, unreasonable  and  a  nuisance.  To  constit.ite  a  nuisance,  the 
use  must  be  such  as  to  produce  a  tangible  and  appreciable  injury 
to  neighboring  property,  or  such  as  to  render  its  enjoyment  espe- 
cially uncomfortable  or  inconvenient. 

It  matters  not  that  the  brick-yard  was  used  before  plaintiffs 


135^  LEROY  FinRE  CO.  2'.  CHICAGO,  M.,  ETC.,  R.  CO. 

bought  their  lands  or  built  their  houses.  {Taylor  v.  The  People, 
6  Parker  Cr.,  352;  Wier's  Appeal,  74  Penn.,  230;  Brady  v.  Weeks, 
3  Barb.  156;  Barnwell  \.  Brooks,  i  Law  Times  (N.  S.)  454.)  One 
can  not  erect  a  nuisance  upon  his  land  adjoining  vacant  lands  owned 
by  another  and  thus  measurably  control  the  uses  to  which  his  neigh- 
])or's  land  may  in  the  future  be  subjected.  He  may  make  a  reason- 
able 'and  lawful  use  of  his  land  and  thus  cause  his  neighbor  some 
inconvenience,  and  probably  some  damage  which  the  law  would  re- 
gard as  damnum  absque  injuria.  But  he  can  not  place  upon  his 
land  anything  which  the  law  would  pronounce  a  nuisance,  and  thus 
compel  his  neighbor  to  leave  his  land  vacant,  or  to  use  it  in  such 
way  only  as  the  neighboring  nuisance  will  allow.^ 


LEROY  FIBRE  CO.  v.  CHICAGO,  M.  &  ST.  P.  R.  CO. 

Supreme  Court  of  the  United  States,  1914.    232  U.  S.  340. 

The  LeRoy  Fibre  Company  brought  an  action  against  defendant 
in  a  state  court  of  Minnesota  to  recover  the'  value  of  certain  flax 
straw  alleged  to  have  been  negligently  burned  and  destroyed  by  de- 
fendants The  cause  was  removed  to  the  circuit  for  the  district  of 
Minnesota,  where  it  was  tried.  One  of  the  grounds  of  negligence  set 
forth  was  that  a  locomotive  engine  of  defendant,  while  passing  the 
premises  of  plaintiff,  was  so  negligently  managed  and  operated  by  de- 


*  Though  Blackstone  in  his  commentaries,  Vol.  2,  403,  stated  that  "if  my 
neighbor  makes  a  tan-yard,  so  as  to  annoy  and  render  less  salubrious  the  air 
of  my  house  or  gardens,  the  law  will  furnish  me  with  a  remedy;  but  if  lie 
is  first  in  possession  of  the  air,  and  I  fi.x  my  habitation  near  him,  the  nui- 
sance is  my  own  seeking  and  may  continue" ;  the  view  expressed  in  the  prin- 
cipal case  was  adopted  in  Bamford  v.  Tur)ile\',  3  B.  &  S.  62  (1862),  and  St. 
Helens  Smelting  Co.  v.  Tipping,  11  H.  L.  C.  642  (1865). 

Accord:  Bliss  v.  Hall,  4  Bing.  New  Cas.  183  (1838)  ;  Crump  v.  Lambert, 
L.  R.  3  Eq.  409  (1867)  ;  Hurlbut  v.  McKonc.  55  Conn.  31  (1887)  ;  Laflin  & 
Rand  Pozvder  Co.  v.  Tearnev,  131  111.  322  (1890)  ;  Baker  v.  Leka,  48  111.  App. 
353  (1892);  Bushnell  v.  Robeson,  62  Iowa  540  (1883);  Susquehanna  ferti- 
lizer  Co.  v.  Malone,  7Z  Md.  268  (1890);  Baltimore  v.  Fairfield  Co.,  87  Md. 
352  (1898)  ;  O'Brien  v.  St.  Paul,  18  ^linn.  176  (1872)  ;  King  v.  Morris  &  E. 
R.  Co.,  18  N.  J.  Eq.  397  (1867)  ;  Bradv  v.  Weeks,  3  Barb.  157  (N.  Y.  1848)  ; 
Dallas  V.  Ladies  Art  Club.  4  Pa.  Co.  Ct.  Rep.  340  (1887)  ;  City  of  Sherman 
v.  Langham,  13  S.  W.  1042  (Supreme  Ct.  of  Texas  1890);  and  see  Wier's 
Appeal,  74  Pa.  230  (1873).  In  some  of  these  cases  the  plaintiff  purchased  the 
property  after  the  erection  of  the  defendant's  nuisance,  in  others  he  there- 
after devoted  his  land  to  new  uses  to  which  only  was  the  defendant's  conduct 
injurious. 

The  plaintiff  may,  however,  so  far  encourage  the  defendant  in  erecting 
the  nuisance  or  acquiesce  in  his  expending  money  in  its  erection  as  to  lose 
his  right  to  either  equitable  or  legal  relief,  Hu}itinciton  and  Kenova  Land 
Development  Co.  v.  Phoeni.v  Pozvder  Mfg.  Co.,  40  W.  Va.  711  (1895)  and 
cases  cited  therein ;  where  the  plaintiff  company  believing  that  the  erection 
of  the  defendants'  plant  in  its  tract  would  aid  its  development,  induced  it  to 
purchase  part  of  its  tract  and  build  a  mill,  but  afterwards  finding  the  mill 
was  a  detriment  and  not  an  advantage  to  their  remaining  land,  sought  to  en- 
join the  mill  as  a  nuisance;  see  also,  Chaffee  v.  Telephone  Co.,  77  Mich.  625 
(1889),  and  Alexander  v.  Kerr,  2  Rawle  83  (Pa.  1828). 


LEROV  FIBRE  CO.  V.  CHICAGO,   M.,  ETC.,  K.  CO.  1353 

fendant's  employees  that  it  emitted  and  threw  sparks  and  coal  of 
unusual  size  upon  the  stacks  of  flax  straw,  and  thereby  set  Are  to 
and  destroyed  them. 

The  evidence  at  the  trial  showed  the  following-  facts:  Some 
years  after  the  defendant  had  constructed  its  line,  the  plaintiff  es- 
tablished a  factory  for  the  manufacture  of  tow  from  flax  straw. 
Upon  its  land,  adjoining  its  factory  and  abutting  on  the  defendants' 
right  of  way,  it  stored  flax  straw  in  parallel  rows  of  stacks,  the 
nearest  some  seventy-five  feet,  the  other  eighty-five  feet,  from  the 
center  of  the  right  of  way.  There  was  some  substantial  evidence 
tending  to  show  that  a  live  cinder  was  emitted  by  a  negligently 
operated  engine  of  the  defendant  and  carried  by  a  high  wind,  then 
prevailing,  into  contact  with  one  of  the  farther  rows  of  stacks,  which, 
being  highly  inflammable,  it  ignited.  It  was  contended  at  the  trial 
by  the  defendant,  that  plaintifi:  itself  was  negligent,  and  that  its  neg- 
ligence contributed  to  the  destruction  of  its  property.  There  was 
no  evidence  that  plaintiff  was  negligent  save  that  it  had  placed  its 
property  of  an  inflammable  character  upon  its  own  premises  so  near 
the  railroad  tracks,  that  is  to  say,  the  first  row  of  stacks,  70  or  75 
■feet,  and  the  second  row,  in  which  the  fire  started,  about  85  feet 
from  the  center  of  the  railroad  track.  In  other  words,  the  character 
of  the  property  and  its  proximity  to  an  operated  railroad,  for  which 
plaintiff  was  responsible,  was  the  sole  evidence  of  plaintiff's  con- 
tributory negligence.. 

The  trial  court  charged  the  jury  that  though  the  destruction 
of  the  straw  was  caused  by  defendant's  negligence,  yet  if  the  plain- 
tiff, in  placing  and  maintaining  two  rows  of  stacks  of  flax  straw 
within  a  hundred  feet  of  the  center  line  of  the  railroad,  failed  to 
exercise  that  ordinary  care  to  avoid  danger  of  firing  its  straw  from 
sparks  from  engines  passing  on  the  railroad  that  a  person  of  or- 
dinary prudence  would  have  exercised,  under  like  circumstances, 
and  that  the  failure  contributed  to  cause  the  accident,  the  plaintiff' 
could  not  recover.  The  trial  court  also  submitted  two  questions 
to  the  jury,  as  follows : 

"i.  Did  the  Fibre  Company,  in  placing  and  keeping  two  rows 
of  flax  straw  within  100  feet  of  the  center  line  of  the  railroad,  fail 
to  use  the  care  to  avoid  danger  to  its  straw  from  sparks  of  fire  from 
engines  operating  on  that  railroad,  that  a  person  of  ordinary  pru- 
dence would  have  used  under  like  circumstances?  2.  Did  the  en- 
gineer McDonald  fail  to  use  that  degree  of  care  to  preveijt  sparks 
from  his  engine  from  firing  the  stacks  as  he  passed  them,  on  April 
2,  1907,  that  a  person  of  ordinary  prudence  would  have  used  under 
like  circumstances? 

"The  jury  answered  both  questions  in  the  affirmative  and  found 
a  general  verdict  for  the  defendant.  Judgment  was  accordingly 
entered  for  defendant.  The  plaintiff  duly  saved  exceptions  to  the 
charge  of  the  court  regarding  its  contributory  negligence  and  to 
the  submission  of  the  first  question  to  the  jnry,  and  has  assigned 
the  action  of  the  court  as  error." 

Mr.  Justice  McKenn.x  delivered  the  opinion  of  the  court ; 


1354  LEROY  FIBRE  CO.  V.  CHICAGO,  M.,  ETC.,  R.  CO. 

The  questions  certified^  present  two  facts — (i)  The  negh- 
gence  of  the  railroad  was  the  immediate  cause  of  the  destruction 
of  the  property.  (2)  The  property  was  placed  by  its  owner  near  the 
right  of  way  of  the  railroad,  but  on  the  owner's  own  land. 

The  query  is  made  in  the  first  two  questions  whether  the  latter 
fact  constituted  evidence  of  negligence  of  the  owner,  to  be  submitted 
to  the  jury.  It  will  be  observed,  the  use  of  the  land  was  of  itself 
a  proper  use, — it  did  not  interfere  with  nor  embarrass  the  rightful 
operation  of  the  railroad.  It  is  manifest,  therefore,  the  questions 
certified,  including  the  third  question,  are  but  phases  of  the  broader 
one,  whether  one  is  limited  in  the  use  of  one's  property  by  its  prox- 
imity to  a  railroad ;  or,  to  limit  the  proposition  to  the  case  under 
review,  whether  one  is  subject  in  its  use  to  the  careless  as  well  as 
to  the  careful  operation  of  the  road.  We  might  not  doubt  that  an 
immediate  answer  in  the  negative  should  be  given  if  it  were  for  the 
hesitation  of  the  circuit  court  of  appeals,  evinced  by  its  questions, 
and  the  decisions  of  some  courts  in  the  affirmative.  That  one's 
uses  of  his  property  may  be  subject  to  the  "servitude  of  the  wrong- 
ful use  by  another  of  his  property  seems  an  anomaly.  It  upsets 
the  presumptions  of  law,  and  takes  from  him  the  assumption,  and 
the  freedom  which  comes  from  the  assumption,  that  the  other  will 
obey  the  daw,  not  violate  it.  It  casts  upon  him  the  duty  of  not  only 
using  his  own  property  so  as  not  to  injure  another,  but  so  as  to 
use  his  own  property  that  it  may  not  be  injured  by  the  wrongs  of 
another.  How  far  can  this  subjection  be  carried?  Or,  confining 
the  question  to  railroads,  what  limits  shall  be  put  upon  their  im- 
munity from  the  result  of  their  wrong£,ul  operation?  In.  the  case 
at  bar,  the  property  destroyed  is  described  as  inflammable,  but  there 
are  degrees  of  that  quality ;  and  how  wrongful  must  be  the  opera- 
tion? In  this  case,  large  quantities  of  sparks  and  "live  cinders" 
were  emitted  from  the  passing  engine.  Houses  may  be  said  to  be 
inflammable,  and  may  be,  as  they  have  been,  set  on  fire  by  sparks 
and  cinders  from  defective  or  carelessly  handled  locomotives.     Are 


^  The  following  questions  were  certified  : 

"1.  In  an  action  at  law  by  the  owner  of  a  natural  product  of  the  soil, 
such  as  flax  straw,  which  he  lawfully  stored  on  his  own  premises,  and  which 
was  destroyed  by  fire  caused  by  the  negligent  operation  of  a  locomotive  en- 
gine, to  recover  the  value  thereof  from  the  railroad  company  operating  the 
engine,  is  it  a  question  for  the  jury  whether  the  owner  was  also  negligent, 
without  other  evidence  than  that  the  railroad  company  preceded  the  owner 
in  the  establishment  of  its  business,  that  the  property  was  inflammable  in 
character,  and  that  it  was  stored  near  the  railroad  right  of  way  and  track? 

"2.  Is  it  a  question  for  the  jury  whether  an  owner  who  lawfully  stores 
his  property  on  his  own  premises  adjacent  to  a  railroad  right  of  way  and 
track  is  held  to  the  exercise  of  reasonable  care  to  protect  it  from  fire  set  by 
the  negligence  of  the  railroad  company,  and  not  resulting  from  unavoidable 
accident  or  the  reasonably  careful  conduct  of  its  business? 

"3.  As  respects  liability  for  the  destruction  by  fire  of  property  lawfully 
held  on  private  premises  adjacent  to  a  railroad  right  of  way  and  track,  does 
the  owner  discharge  his  full  legal  duty  for  its  protection  if  he  exercises  that 
care  which  a  reasonable  prudent  man  would  exercise  under  like  circum- 
stances to  protect  it  from  the  dangers  incident  to  the  operation  of  the  rail- 
road, conducted  with  reasonable  care?" 


LEROV  FIBRE  CO.  V.  CHICAGO,  M.,  ETC.,  R.  CO.  1355 

they  to  be  subject  as  well  as  stacks  of  flax  straw,  to  such  lawless 
operation?  And  is  the  use  of  farms  also,  the  cultivation  of  which 
the  building  of  the  railroad  has  preceded?  Or  is  that  a  use  which 
the  railroad  must  have  anticipated,  and  to  which  it  hence  owes  a 
duty,  which  it  does  not  owe  to  other  uses?  And  why?  The  ques- 
tion is  especially  pertinent  and  immediately  shows  that  the  rights 
of  one  man  in  the  use  of  his  property  can  not  be  limited  by  the 
wrongs  of  another.  The  doctrine  of  contributory  negligence  is  en- 
tirely out  of  place.  Depart  from  the  simple  requirement  of  the 
law,  that  every  one  must  use  his  property  so  as  not  to  injure  others, 
and  you  pass  to  refinements  and  confusing  considerations.  There 
is  no  embarrassment  in  the  principle  even  to  the  operation  of  a 
railroad.  Such  operation  is  a  legitimate  use  of  property  ;  other  prop- 
erty in  its  vicinity  may  sufifer  inconveniences  and  be  subject  to  risks 
by  it,  but  a  risk  from  wrongful  operation  is  not  one  of  them. 

The  legal  conception  of  property  is  of  rights.  When  you  at- 
tempt to  limit  them  by  wrongs,  you  venture  a  solecism.  If  you 
declare  a  right  is  subject  to  a  wrong,  you  confound  the  meaning 
of  both.  It  is  difficult  to  deal  with  the  opposing  contention.  There 
are  some  principles  that  have  axiomatic  character.  The  tangibility 
of  property  is  in  its  uses,  and  that  the  uses  by  one  owner  of  his 
property  may  be  limited  by  the  wrongful  use  of  another  owner  of  his 
is  a  contradiction.     But  let  us  pass  from  principle  to  authority. 

Grand  Trunk  R.  Co.  v.  Richardson,  91  U.  S.  454,  23  L.  ed. 
356,  was  an  action  for  damages  for  the  destruction  of  a  s^awmill, 
lumber  shed,  and  other  buildings  and  manufactured  lumber,  by  fire 
communicated  by  a  locomotive  engine  of  a  railroad.  Some  of  the 
buildings  were  erected  in  part  on  the  company's  land  near  its  track, 
,  and  the  railroad  company  requested  the  court  to  charge  the  jury 
that  the  erection  of  the  buildings  or  the  storing  of  lumber  so  near 
the  company's  track,  as  the  evidence  showed,  was  an  improvident 
or  careless  act,  and  that  if  such  location  contributed  in  any  degree 
to  the  loss  which  ensued,  then  the  plaintififs  could  not  recover,  even 
though  the  fire  was  communicated  by  the  railroad  company's  loco- 
motive. The  court  refused  the  request  and  its  action  was  sustained. 
Mr.  Justice  Strong,  speaking  for  the  court,  said:  "Such  a  location, 
if  there  was  a  license  for  it,  (it  not  then  being  a  trespass),  was  a 
lawful  use  of  its  property  by  the  plaintififs ;  and  they  did  not  lose 
their  right  to  compensation  for  its  loss  occasioned  by  the  negligence 
of  the  defendant.  Cook  v.  Champlain  Transp.  Co.,  i  Denio,  91  ;  Fero 
V.  Buffalo  &  State  Line  R.  Co.,  22  N.  Y.  215,  78  Am.  Dec.  178." 

In  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  South  Fork  Coal  Co., 
I  L.  R.  A.  (N.  S.)  533,  71  C.  C.  A.  316,  139  Fed.  530,  there  was 
the  destruction  of  lumber  placed  on  the  railroad's  right  of  way  by 
permission  of  the  railroad.  It  was  destroyed  by  fire  occurring 
through  the  negligent  operation  of  the  railroad's  trains.  Contribu- 
tory negligence  was  urged  against  the  right  of  recovery.'  The  court 
(circuit  court  of  appeals  for  the  sixth  circuit),  commenting  on  the 
cases  cited  by  the  railroad,  said:  "But  in  so  far  as  the  opinions  go 
upon  the  theory  that  a  plaintiff  must  lose  his  right  of  compensation 


1356  LEROY  FIBRE  CO.  V.  CHICAGO,  M.,  ETC.,  R.  CO. 

for  the  negligent  destruction  of  his  own  property,  situated  upon  his 
own  premises,  because  he  had  exposed  it  to  dangers  which  would 
come  to  it  only  through  the  negligence  of  the  railroad  company, 
they  do  not  meet  our  approval." 

After  citing  cases,  the  court  continued :  "The  rights  of  persons 
to  the  use  and  enjoyment  of  their  own  property  are  held  upon  no 
such  tenure  as  this.  The  principle  would  forbid  the  use  of  property 
for  many  purposes  if  in  such  proximity  to  a  railroad  track  as  to 
expose  it  to  dangers  attributable  to  the  negligent  management  of  its 
business."-     Other  cases  might  be  adduced.     They   are  cited   in 


^  See  also,  the  very  able  opinion  of  Dixon,  C.  J.,  in  Kellog  v.  Chicago  & 
N.  IV.  R.  Co.,  26  Wis.  223  (1870).  It  is  usually  held  that  a  landowner  does  not 
assume  the  risk  of  fires  from  the  negligent  operation  of  adjacent  railroads 
because  he  fails  to  remove  therefrom  the  dry  leaves,  stubble,  grass  and  other 
debris  which  accumulates  in  the  ordinary  course  of  nature.  Vaiighan  v.  The 
Taif  J 'ale  R.  Co.,  3  H.  &  N.  743  (1858)  ;  Flvnn  v.  San  Francisco  &  S.  J.  R. 
Co.,  40  Cal.  14  (1870)  ;  Fitch  v.  Pacific  R.  Co..  45  Mo.  322  (1869)  ;  Salmon 
V.  Delazvare,  L.  &  IV.  R.  Co.,  38  X.  J.  L.  5  (1875)  ;  Philadelphia  &  R.  R.  Co. 
V.  Schnltc,  93  Pa.  341  (1880)  ;  or  because  he  stores  or  uses  inflammable  mat- 
ter at  a  point  thereon  adjacent  to  the  defendant  company's  tracks,  Kalbflcisch 
V.  Long  Island  R.  Co.,  102  N.  Y.  520  (1886).  where  the  plaintiff  was  thinning 
down  varnish  with  benzine  outside  of  his  building  which  adjoined  the  de- 
fendant's right  of  way;  Southern  R.  Co.  v.  Patterson,  105  Ya.  6  (1906),  kero- 
sene stored  in  a  warehouse  close  to  the  defendant's  right  of  way;  Boston 
Excelsior  Co.  v.  Bangor,  93  jMaine  52  (1899)  ;  Peter  v.  Chicago  &  W.  M.  R. 
Co.,  121  Mich.  324  (1899)  ;  Southern  R.  Co.  v.  Wilson,  138  Ala.  510  (1903)  ; 
CJevelamd  C.  C.  &  St.  L.  R.  Co.  v.  Scanfland,  151  Ind.  488  (1898)  ;  Erickson 
V.  Penna.  R.  Co.,  170  Fed.  572  (1909)  ;  St.  Louis  R.  Co.  v.  Fire  Association,  55 
Ark.  163  (1891).  A  distinction  is,  however, "cirawn  in  Murphy  v.  Chicago  etc. 
R.  Co.,  45  Wis.  222  (1878)  and  Coates  v.  Missouri  K.  &  T.  R.  Co.,  61  Mo.  38 
(1875),  between  a  failure  to  remove  inflamm.able  matter  accumulating  natu- 
rally and  inflammable  matter  artificiallv  brought  upon  the  premises,  see" 
accord,  Macon  &  IV.  R.  Co.  v.  McConnell.  27  Ga.  481  (1859).  with  which  com- 
pare Albany  &  N.  R.  Co.  v.  Wheeler,  6  Ga.  App.  270  (1909). 

Nor  does  the  owner  who  erects  a  building  upon  his  premises  near  to  the 
wharf  of  a  steamboat  company  or  the  tracks  of  a  railway  company  assume 
the  risk  of  injury  from  fires  started  by  the  neghgent  operation  of  the  boats 
or  engines  of  such  companies,  Cook  v.  Champlain  Transportation  Co..  1 
Denio  91  (N.  Y.  1845)  ;  Burke  v.  Louisville  &  N.  R.  Co..  7  Heisk.  451  (Tenn. 
1872)  ;  Jacksonville  R.  R.  v.  Peninsular  Land  Co.,  27  Fla.  1  (1891)  ;  Cincin- 
nati N.  O.  &  T.  P.  R.  Co.  v.  Barker,  94  Ky.  71  (1893)  ;  Ide  v.  Boston  & 
Maine  R.,  83  Vt.  66  (1909),  nor  does  he  assume  such  risk  because  he  places 
a  frame  house  on  the  premises,  Briant  v.  Detroit  L.  &  N.  R.  Co.,  104  Mich. 
307  (1895)  or  fails  to  keep  the  roof  in  good  repair,  Philadelphia  R.  R.  Co.  v. 
Hendrickson,  80  Pa.  182  (1876). 

On  the  other  hand  it  is  sometimes  held  to  be  for  the  jury  to  say  whether 
the  plaintiff  is  negligent  in  piling  inflammable  matter  near  a  railroad  track, 
Louisville  &  N.  R.  Co.  v.  Short,  110  Tenn.  717  (1903)  ;  Alabama  &  V.  R.  Co. 
V.  Fried  Co.,  81  Miss.  314  (1902)  ;  San  Antonio  &  A.  P.  R.  Co.  v.  Home  In- 
surance Co.,  70  S.  W.  999  (Texas  Ct.  of  Civ.  Appeals  1902),  or  in  locating  an 
oil  tank  within  thirtv-six  feet  of  tracks  of  a  railroad,  Confer  v.  New  York 
L.  E.  &  W.  R.  Co./l46  Pa.  St.  31  (1892),  or  in  throwing  out  straw  from  a 
■stable  very  close  to  the  defendants'  tracks,  during  the  summer,  Collins  v. 
Netif  York  Cent.  &  H.  R.  Co.,  5  Hun  499  ( N.  Y.  1875)  :  and  see  White,  J.  m 
Post  v.  Buffalo  P.  &  W.  R.  Co..  108  Pa.  585  (1885)  ;  Fero  v.  R.  R.,  supra. 

It  is  to  be  noted  that  the  plaintiff  has  the  same  right  to  use  any  part  of  the 
defendants'  right  of  wav  which  it  permits  him  to  occupy  with  its  license  a? 
though  it  were  his  own,'  Cincinnati  N.  0.  f^  T.  P.  R.  Co.  v.  South  Fork  Coal 
Co.   139  Fed.  528  (1905)  ;  1  L.  R.  .\.  (X.  S.)  533,  and  case^  cited  in  the  note 


LEROY  FIBRE  CO.  V.  CHICAGO,  M.,  ETC.,  R.  CO.  1357 

Thompson  on  Negligence,  §  2314,  and  Sherman  and  Redfield  on 
Xeghgence.  §  680,  for  the  principle  that  an  owner  of  property  is  not 
limited  in  the  uses  of  his  property  by  its  proximity  to  a  railroad,  or 


in  this  latter  report ;  but  it  is  contributory  wrongdoing  to  place  one's  inflam- 
mable property  upon  the  railway's  right  of  way  without  its  consent,  Chicago 
B.  &  Q.  R.  Co.  V.  Cook,  18  Wyo.  43  (1909).  On  the  other  hand  if  the  plaintiff 
invites  upon  his  premises,  for  the  purpose  of  serving  him  in  his  business,  an 
engine  of  the  defendants  which  he  knows  to  be  out  of  repair  and  so  to  emit 
sparks,  he  is  bound  to  take  care  to  protect  his  nearby  property  from  being 
ignited  by  it,  his  knowledge  of  the  defective  condition  of  the  engine  and 
whether  he  has  used  due  care  to  protect  his  property  being  usually  held  to 
be  questions  of  fact  for  the  jurv,  Marquette  etc.  R.  Co.  V.  Spear,  44  Mich.  169 
(1880);  Hohnan  V.  Boston  Land  Co.,  8  Colo.  App.  282  (1896);  Liverpool, 
London  &  Globe  Ins.  Co.  v.  Southern  Pac.  R.  Co.,  125  Cal.  434  (1899). 

In  Massachusetts  it  was  held  in  Ross  v.  B.  &  W.  R.  Co.,  88  Mass.  (6  Allen) 
87  (1863),  that  it  was  a  matter  for  the  jury  to  say  whether  the  plaintiff  was 
guilty  of  a  want  of  ordinary  care  in  leaving  open  the  door  which  opened 
toward  the  railway  in  a  shed  filled  with  inflammable  matter.  In  Ingersoll  v. 
Stockbridge  &  Pittsfield  R.  Co.,  90  ]\Iass.  438  (1864),  it  was  held  that  the 
general  statute,  Chap.  68,  sec.  101,  having  made  railways  responsible  for  fire 
communicated  by  their  engines,  the  plaintiff  could  recover  though  his  house 
was  situated  part  on  his  own  land  and  part,  with  the  defendants'  license,  upon 
its  right  of  way.  In  IVall  v.  Pratt,  169  Mass.  398  (1897),  it  is  said  that  it 
would  be  doubtful  whether  contributory  negligence  on  the  part  of  the  owner 
of  property  destroyed  by  fire  communicated  by  a  locomotive  engine  would  be 
a  defense  unless  so  gross  as  to  amount  to  fraud;  but  in  Jl'ild  v.  Boston  &■  M. 
R.  R.  Co.,  171  Mass.  245  (1898),  the  court  doubts  whether  the  right  of  the 
property  owner  is  not  there  (in  IVall  v.  Pratt)  stated  too  broadly,  but  holds 
that  the  defendant  has  no  right  to  complain  of  an  instruction  leaving  the 
question  to  the  jury. 

Where  the  defendant  negligently  or,  if  a  railroad,  in  breach  of  its  statu- 
tory obligation,  fails  to  fence  its  property  or  right  of  way  so  as  to  prevent 
the  intrusion  of  cattle  from  adjacent  property,  it  held  the  owner  of  such 
property  does  not,  by  putting  the  cattle  into  a  field  which  he  knows  is  un- 
fenced  or  where  he  knows  the  fence  is  defective,  assume  the  risk  of  injury 
through  the  escape  of  his  cattle,  McCoy  v.  California  Pac.  R.  Co.,  40  Cal.  532 
(1871)  ;  Rogers  v.  Nezvburyport.  R.  Co.,  1  Allen  16  (]\[ass.  1861)  ;  Gardner  v. 
Smith.  7  Mich.  410  (1859)  ;  Donovan  v.  Hannibal  &  St.  J.  R.  Co.,  89  Mo.  147 
(1886)  ;  Cressey  v.  Northern  R.  Co.,  59  N.  H.  564  (1880)  ;  Cleveland  etc.,  R. 
Co.  v.  Scudder,  40  Ohio  St.  173  (1883)  ;  Heller  v.  Abbott,  79  Wis.  409  (1879). 
In  Wilder  v.  Maine  Cent.  R.  Co.,  65  Maine  332  (1876)  ;  Evans  v.  St.  Paul  & 
S.  C.  R.  Co.,  30  Minn.  489  (1883)  and  Curry  v.  Chicago  &  N.  IV.  R.  Co.,  43 
Wis.  665  (1878),— with  which  compare  Heller  v.  Abbott,  79  Wis.  409 
(1879), — it  was  held  that  it  was  a  question  for  the  jury  to  say  whether  under 
the  circumstances  the  plaintiff's  conduct  was  careful  or  negligent,  while  in 
Krum  &  Peters  v.  Anthony,  115  Pa.  St.  431  (1886),  it  was  held  that  if  the 
plaintiff  put  his  cattle  in  a  field,  knowing  that  his  neighbor  had  failed  to  keep 
in  repair  the  fence  around  his  adjacent  quarry  as  he  had  agreed  to  do,  he, 
the  plaintiff,  was  guilty  of  contributory  negligence. 

An  owner  of  property  whether  real  or  personal  is,  after  knowledge  that 
it  has  been  set  on  fire,  bound  to  take  everv  reasonable  precaution  to  ex- 
tinguish it,  Haverly  v.  State  Line  &  S.  R.  Co.,  135  Pa.  St.  50  (1890)  ;  Van 
Dyke  V.  Grand  Trunk  R.  Co.,  84  Vt.  212  (1911).  So  a  landowner  is  bound 
to  restore  fences  which  his  neighbor  or  another  has  wrongfully  broken  down 
and  can  not  recover  for  the  loss  of  cattle  escaping  through  breaches  in  the 
fences  left  open  by  him,  Laker  v.  Damon,  17  Pick.  287  (Mass.  1835),  though 
he  need  not  find  other  pasture  for  his  own  cattle  to  such  an  extent  as  to 
diminish  the  necessary  pasturage  fields  of  the  plaintiff,  Gilbert  v.  Kennedx, 
22  Mich.  117  (1871)^'  This  is  said  by  Dixon.  C.  J.  in  Kellog  v.  Chicago  R. 
Co.,  26  Wis.  223  (1870),  not  to  conflict  with  the  rule  announced  in  the  prin- 
cipal case,  the  distinction  being  between  "known  present  and  immediate  dan- 


1358  '  LEROY  FIBRE  CO.  V.  CHICAGO,  M.,  ETC.,  R.  CO. 

subject  to  Other  risks  than  those  which  come  from  the  careful  opera- 
tion of  the  road  or  unavoidable  accident. 

The  first  and  second  questions  we  answer  in  the  negative,  and 
the  third  question  in  the  affirmative. 

So  ordered. 
•  Mr.  Justice  Holmes,  partially  concurring: 

If  a  man  stacked  his  flax  so  near  to  a  railroad  that  it  obviously 
was  likely  to  be  set  fire  to  by  a  well-managed  train,  I  should  say  that 
he  could  not  throw  the  loss  upon  the  railroad  by  the  oscillating  re- 
sult of  an  injury  by  the  jury  whether  the  road  had  used  due  care. 
I  should  say  that,  although  of  course  he  had  a  right  to  put  his  flax 
where  he  liked  upon  his  own  land,  the  liability  of  the  railroad  for  a 
fire  was  absolutely  conditioned  upon  the  stacks  being  at  a  reasonably 
safe  distance  from  the  train.  I  take  it  that  probably  many,  certainly 
some,  rules  of  law  based  on  less  than  universal  considerations  are 
made  absolute  and  universal  in  order. to  limit  those  over-refined 
speculations  that  we  all  deprecate,  especially  where  such  rules  are 
based  upon  or  afifect  the  continuous  physical  relations  of  material 
things.  The  right  that  is  given  to  inflict  various  inconveniences  upon 
neighboring  lands  by  building  or  digging  is  given,  I  presume,  because 
of  the  public  interest  in  making  improvement  free,  yet  it  generally 
is  made  absolute  by  the  common  law.  It  is  not  thought  worth  while 
to  let  the  right  to  build  or  maintain  a  barn  depend  upon  the  specula- 
tions of  a  jury  as  to  motives.  A  defect  in  the  highway,  declared  a 
defect  in  the  interest  of  the  least  competent  travelers  that  can 
travel  unattended  without  taking  legal  risks,  or  in  the  interest  of 
the  average  man,  I  suppose  to  be  a  defect  as  to  all.  And  as  in  this 
case  the  distinction  between  the  inevitable  and  the  negligent  escape 
of  sparks  is  one  of  the  most  refined  in  the  world,  I  think  that  I  must 
be  right  so  far,  as  to  the  law  in  the  case  supposed. 

A  very  important  element  in  determining  the  right  to  recover 
is  whether  the  plaintiff's  flax  was  so  near  to  the  track  as  to  be  in 
danger  from  even  a  prudently  managed  engine. .  Here  certainly, 
except  in  a  clear  case,  we  should  call  in  the  jury.  I  do  not  suppose 
that  any  one  would  call  it  prudent  to  stack  flax  within  five  feet  of 
the  engine,  or  imprudent  to  do  it  at  a  distance  of  half  a  mile,  and  it 
would  not  be  absurd  if  the  law  ultimately  should  formulate  an  exact 
measure,  as  it  has  tended  to  in  other  instances.  {Martin  v.  District 
of  Columbia,  205  U.  S.  135,  139,  51  L.  ed.  743,  744,  27  Sup.  Ct.  Rep. 
440)  ;  but  at  present  I  take  it  that  if  the  question  I  suggest  be  mate- 
rial, we  should  let  the  jury  decide  whether  70  feet  was  too  near  by 


ger  and  the  danger  which  is  remote  and  possible  or  probable  only"  "the  differ- 
ence is  between  realization  and  anticipation."  This  is  only  another  way  of 
saying  that  while  the  owner  of  property  is  not  bound  to  provide  against  future 
negligence  he  can  not  shut  his  eyes  to  existing  facts  and  it  may  also  be  sug- 
gested that  in  one  case  the  property  owner  can  not  recover  damages  because 
of  the  restriction  upon  the  use  of  his  property  through  his  fear  of  merely 
probable  future  negligence  on  the  part  of  the  defendant,  nor  could  he  recover 
the  expenses  of  providing  against  it,  while  he  can  recover  as  part  of  his  dam- 
ages where  the  defendants'  negligence  has  actually  occurred,  the  cost,  if  any, 
to  him  in  saving  his  property  from  the  effect  thereof. 


I 


BUTTERFIELD   Z'.    FORRESTER.  1359 

the  criterion  that  I  have  proposed.  Therefore,  while  the  majority 
answer  the  first  question,  Xo,  on  the  ground  that  the  railroad  is 
liable  upon  the  facts  stated  as  matter  of  law,  I  should  answer  it 
Yes,  with  the  proviso  that  it  was  to  be  answered  No,  in  case  the 
jury  found  that  the  flax,  although  near,  was  not  near  enough  to  the 
trains  to  endanger  it  if  the  engines  were  prudently  managed,  or  else 
I  should  decline  to  answer  the  question  because  it  fails  to  state  the 
distance  of  the  stacks. 


u 


CHAPTER  XL 

Contributory  Negligence. 


r     — 

BUTTERFIELD  v.  FORRESTER. 
Court  of  King's  Bench,  1809.     11  East  60. 

This  was  an  action  on  the  case  for  obstructing  a  highway,  by 
means  of  which  obstruction  the  plaintifif,  who  was  riding  along  the 
road,  was  thrown  down  with  his  horse,  and  injured,  &c.  At  the 
trial  before  Bayley,  J.,  at  Derby,  it  appeared  that  the  defendant, 
for  the  purpose  of  making  some  repairs  to  his  house,  which  was 
close  by  the  roadside  at  one  end  of  the  town,  had  put  up  a  pole 
across  this  part  of  the  road,  a  free  passage  being  left  by  another 
branch  or  street  in  the  same  direction.  That  the  plaintifif  left  a  pub- 
lic house  not  far  distant  from  the  place  in  question  at  8  o'clock  in 
the  evening  in  August,  when  they  were  just  beginning  to  light 
candles,  but  while  there  was  light  enough  left  to  discern  the  obstruc- 
tion at  one  hundred  yards,  distance ;  and  the  witness  who  proved 
this,  said  that  if  the  plaintifif  had  not  been  riding  very  hard  he  might 
have  observed  and  avoided  it ;  the  plaintifif,  however,  who  was  rid- 
ing violently,  did  not  observe  it,  but  rode  against  it,  and  fell  with  his 
horse  and  was  much  hurt  in  consequence  of  the  accident ;  and  there 
was  no  evidence  of  his  being  intoxicated  at  the  time.  On  this  evi- 
dence Bayley,  J.,  directed  the  jury,  that  if  a  person  riding  with  rea- 
sonable and  ordinary  care  could  have  seen  and  avoided  the  obstruc- 
tion;  and  if  they  were  satisfied  that  the  plaintifif  was  riding  along 
the  street  extremely  hard,  and  without  ordinary  care,  they  should 
find  a  verdict  for  the  defendant,  which  they  accordingly  did. 

Bayley,  J.  The  plaintifif  was  proved  to  be  riding  as  fast  as 
his  horse  could  go,  and  this  was  through  the  streets  of  Derby.  If 
he  had  used  ordinary  care  he  must  have  seen  the  obstruction ;  so  that 
the  accident  appeared  to  happen  entirely  from  his  own  fault. 

Lord  Ellenborough,  C.  J.  A  party  is  not  to  cast  himself  upon 
an  obstruction  which  had  been  made  by  the  fault  of  another,  and 
avail  himself  of  it,  if  he  did  not  himself  use  common  and  ordinary 
caution  to  be  in  the  right.  In  cases  of  persons  riding  upon  what  is 
considered  to  be  the  wrong  side  of  the  road,  that  would  not  author- 


1360'  PLUCKWELL  V.   WILSON. 

ize  another  purposely  to  ride  up  against  them.  One  person  being  in 
fault  will  not  dispense  with  another's  using  ordinary  care  for  him- 
self. Two  things  must  concur  to  support  this  action :  an  obstruction 
in  the.  road  by  the  fault  of  the  defendant,  and  no  want  of  ordinary 
care  to  avoid  it  on  the  part  of  the  plaintiff. 

Rule  refused. 


PLUCK\\'ELL  V.  WILSON. 
Court  of  King's  Bench,  1832.     5  Carrington  &  Payne,  375. 

Action  for  an  injury  done  to  the  plaintiiif's  chaise  by  a  carriage 
of  the  defendant's,  driven  by  his  servant.  There  was  contradictory 
evidence  as  to  the  cause  of  the  injury,  and  also  as  to  whether  the 
defendant's  carriage  was  in  the  centre,  or  on  its  proper  side,  of 
the  road. 

Mr.  Justice  Alderson  left  it  to  the  jury  to  say  whether  the  in- 
jury to  the  plaintiff's  chaise  was  occasioned  by  negligence  on  the 
part  of  the  defendant's  servant,  without  any  negligence  on  the  part 
of  the  plaintiff  himself ;  for  that,  if  the  plaintiff's  negligence  in  any 
way  concurred  in  producing  the  injury,  the  defendant  would  be  en- 
titled to  the  verdict.  Also,  they  would  have  to  say,  whether  it  was 
altogether  an  accident ;  in  which  case  also  the  defendant  would  be 
entitled  to  the  verdict.  His  Lordship  also  observed,  that  a  person 
was  not  bound  to  keep  on  the  ordinary  side  of  the  road ;  but  that, 
if  he  did  not  do  so,  he  was  bound  to  use  more  care  and  diligence, 
and  keep  a  better  look-out,  that  he  might  avoid  any  concussion, 
than  would  be  requisite  if  he  were  to  confine  himself  to  his  proper 
side  of  the  road. 

Verdict  for  the  plaintiff. 


BowEN,  L.  J.,  in  Thomas  v.  Quatermaine,  L.  R.  18  Q.  B.  Div.  685  (1887;. 
in  distinguishing  contributory  negligence  from  voluntary  assumption  of  risk, 
says,  p.  697:  "It"  (the  defense  of  contributory  negligence)  "rests  on  the 
view  that  though  the  defendant  has  in  fact  been  negligent,  yet  the  plaintiff 
has  by  his  own  carelessness  severed  the  causal  connection  between  the  de- 
fendant's negligence  and  the  accident  which  has  occurred ;  and  that  the  de- 
fendant's negligence  accordingly  is  not  the  true  proximate  cause  of  the  in- 
jury.^ It  is  for  this  reason  that  under  the  old  form  of  pleading  the  defence 
of  contributory  negligence  was  raised,  in  actions  based  on  negligence,  under 
a  pica  of  not  guilty." 


'■  See  however.  Pollock  on  Torts,  9th  ed.  467-477  and  an  essay  on  "Con- 
triinitory  Negligence"  by  the  editor,  21  Harv.  L.  R.  233  (1908),  especially 
pp.  234  to  242.  And  see  Blenkinsop  v.  Ogdcn,  L.  R.  1898,  1  Q.  B.  783.  in 
which  the  defendant  unsuccessfully  contended  that  the  contributory  negli- 
gence of  a  workman  injured  in  using  unguarded  machinery  would  destroy 
the  casual  connection  between  the  defendant's  violation  of  the  statute  requir- 
ing the  machinery  to  be  fenced  and  so  relieve  them  from  liability  to  a  fine 
thereunder. 


NIEBOER  Z'.  DETROIT  ELEC.  RAILWAY,  1 36 1 

Lord  Esher,  M.  R.,  in  Tliowas  v.  Onatermainc,  L.  R.  18  Q.  B.  Div. 
685  (1887),  p.  688: 

"In  an  action  for  injuries  arising  from  negligence  it  was  always  a  defense 
that  the  plaintiff  had  failed  to  show  that  as  between  him  and  the  defendant 
the  injury  had  happened  solely  by  the  defendant's  negligence.  If  the  plain- 
tiff by  some  negligence  on  his  part  directly  contiibuted  to  the  injury,  it  was 
caused  by  the  joint  negligence  of  both,  and  no  longer  solely  by  the  negligence 
of  the  defendant,  and  that  formed  a  defence  to  the  action." 


Moore,  J.,^  in  Nieboer  v.  Detroit  Electric  Railway,  Supreme  Court  of 
.Michigan,  1901,  128  Mich.  486:' 

"The  law  by  which  it  is  determined  whether  or  not  the  contributory  neg- 
ligence of  the  plaintiff  bars  recovery  is  very  uncertain.  The  adjudicated 
cases  are  by  no  means  harmonious,  and  there  is  an  irreconcilable  conflict 
between  the  principles  announced  by  eminent  judges  and  the  text-book 
writers.  It  has  been  stated  that  the  plaintiff  can  not  recover  if  the  injury 
complained  of  would  not  have  occurred  without  his  negligence.  It  has  also 
been  stated  that  plaintiff's  negligence  will  not  bar  his  recovery  if  due  care 
on  the  part  of  the  defendant  would  have  prevented  the  injury.  If  the  first 
statement  is  correct,  contributory  negligence  never  prevents  recovery.  The 
truth  is  that  the  first  statement  can  be  correctly  applied  only  in  cases  of 
sitnultaneous  negligence,  as  in  the  case  of  an  injury  to  a  person  while  cross- 
ing a  railway  in  consequence  of  his  and  the  railway  company's  negligence. 
The  second  statement  can  be  correctly  applied  only  in  cases  of  successive 
negligence,  as  in  the  famous  Donkey  Case,  of  Davies  v.  Mann,  10  Mees.  &  W. 
546,  where  defendant  negligently  ran  into  and  injured  the  plaintiff's  donkey, 
which  plaintiff  had  negligently  permitted  to  go  unattended  on  the  highway. 
The  test  almost  universally  approved  is  whether  or  not  plaintiff's  negligence 
is  the  proximate  cause  of  his  injury.  If  it  is,  he  can  not  recover;  if  it  is  not. 
he  can.  Even  this  test  has  been  criticised  on  the  ground  that  the  term  'prox- 
iinate'  is  misleading.  I  think  this  criticism  just  and  important.  The  word 
■proximate'  is  ordinarily  used  to  indicate  the  relation  between  defendant's 
negligence  aiid  the  plaintiff's  injury.  As  so  used,  it  has  not  the  same  mean- 
ing that  it  has  when  used  to  indicate  the  relation  between  plaintiff's  negli- 
gence and  plaintiff's  injury.  To  illustrate,  suppose  in  the  case  of  Daiies  v. 
Mann,  above  referred  to,  that,  as  a  result  of  the  collision  between  the  cart 


*  Quoting  Carpenter,  J.  who  delivered  the  opinion  in  the  Circuit  Court. 

'The  plaintiff  while  riding  on  the  bumper  on  the  rear  of  an  electric 
street  car  was  injured  by  another  car  which  ran  into  the  car  on  which  he 
was  riding.  The  cars  were  running  at  two  or  three  minute  intervals  and  tin- 
plaintiff's  car  having  come  to  a  sudden  stop,  the  following  car  was  unable  t;i 
stop  in  time  to  prevent  the  very  slight  collision  in  which  the  i)laintiff  was  in- 
jured. The  majority  of  the  court  reversed  a  judgment  for  the  plaintiff,  being 
uf  the  opinion  that  the  plaintiff  was  guilty  of  continuing  negligence  in  volun- 
tarily placing  himself  in  a  position  of  known  danger  and  that  the  trial  court 
should  have  directed  a  verdict  for  the  defendant,  ^loorc.  J.,  with  whom  Mont- 
gomery C.  J.  concurred,  dissented  on  the  ground  that  while  the  plai'.ni'T 
assumed  the  risk  of  falling  or  being  thrown  from  the  car,  he  was  not  negli- 
gent in  taking  such  position  and  that  if  negligent,  "had  no  such  relation  to 
his  injury  as  had  the  negligence  of  the  defendant." 


1362  DAVIS  V.  GUARNIERI. 

and  the  donkey,  a  third  person  had  been  injured ;  I  think  all  will  agree  that 
the  owner  of  the  donkey,  as  well  as  the  owner  of  the  cart,  would  have  been 
liable.  See  Lynch  v.  Nurdin,  1  Q.  B.  (n.  s.)  29.  And  we  have  already  seen 
that  the  negligence  of  the  owner  of  the  donkey  was  not  so  related  to  the  col- 
lision as  to  preclude  recovery  in  a  suit  by  him  against  the  owner  of  the  cart. 
As"  used  in  relation  to  contributory  negligence,  the  term  'proximate'  simply 
means  that  in  some  way  the  relation  between  plaintiff's  negligence  and  his 
injury  is  more  remote  than  that  between  defendant's  negligence  and  the 
injury."' 


Owen,  C.  J.,  in  Davis  v.  Guariiicri,  Supreme  Court  of  Ohio,  1887,  45 
Ohio  St.  470  (1887),  p.  489:' 

"The  doctrine  of  contributory  negligence  is  found  upon  these  considera- 
tions: (1)  The  mutual  wrong  and  negligence  of  the  parties,  and  the  reluc- 
tance of  the  law  to  attempt  an  apportionment  of  the  wrong  between  them.^ 
(2)  The  principle  which  requires  every  suitor  who  seeks  to  enforce  his 
rights  or  redress  his  wrongs,  to  go  into  the  court  with  clean  hands,  and  which 
will  not  permit  him  to  recover  for  his  own  wrong.  (3)  The  policy  of  mak- 
ing the  personal  interests  of  parties  dependent  upon  their  care  and  prudence.*" 


^  See  Cordiner  V.  Los  Angeles  Traction  Co.  and  Los  Angeles  R.  Co.,  5 
Cal.  App.  400  (1907),  where  the  plaintiff  having  been  injured  in  a  collision 
between  the  vehicles  of  the  two  defendants,  both  negligently  operated,  the 
Railway  Co.  unsuccessfully  contended  that  if  the  motorman  of  the  Traction 
Co.  could  have  stopped  his  car  after  seeing  the  Railway  Company's  car  upon 
its  tracks,  the  Traction  Co.  was  alone  Ifeble  to  the  plaintiff,  and  Shield  v. 
Johnson  Co.,  132  La.  77i  (1913),  a  substantially  similar  case.  In  Nashua 
Iron  &c.  Co.  v.  Worcester  &  N.  R.  Co.,  62  N.  H.  159  (1882),  the  court  held 
that  he,  of  two  persons  whose  joint  negligence  had  injured  another,  from 
whom  the  plaintiff  had  recovered  damages,  was  entitled  to  indemnity  from 
the  other,  if  such  other  had  had  the  last  clear  chance  to  prevent  the  accident, 
but  see  21  Harv.  L.  R.,  pp.  242-243  and  Shield  v.  Johnson  Co.,  132  La.  773 
(1913). 

'The  court  held  that  these  considerations  did  not  require  that  the  plain- 
tiff, poisoned  by  drugs  carelessly  put  up  by  the  defendant,  should  be  barred 
by  the  contributory  negligence  of  her  husband  in  failing  to  discover  the 
defendant's  mistake.  See  the  very  similar  language  in  Bellfontaine  & 
Indiana  R.  Co.  v.  Snyder,  18  Ohio  St.  399  (1868),  holding  that  an  infant 
plaintiff  is  not  barred  by  the  negligence  of  his  parent  or  custodian. 

^"The  reason  why,  in  cases  of  mutual  concurring  negligence,  neither 
party  can  maintain  an  action  against  the  other,  is,  not  that  the  wrong  of  the 
one  is  set-off  against  the  wrong  of  the  other;  it  is  that  the  law  can  not 
measure  how  much  of  the  damage  suffered  is  attributable  to  the  plaintiff's 
own  fault.  If  he  were  allowed  to  recover,  it  might  be  that  he  would  obtain 
from  the  other  party  compensation  for  his  own  misconduct." — Strong,  J.  in 
Hcil  v.  Glanding,  42  Pa.  493  (1862),  p.  499. 

''It  is  an  incontestable  principle  that  where  the  injury  complained  of  is 
the  product  of  mutual  or  concurring  negligence,  no  action  for  damages  will 
lie.  The  parties  being  mutually  in  fault,  there  can  be  no  apportionment  of 
the  damages.  The  law  has  no  scales  to  determine  in  such  cases  whose  wrong- 
doing weighed  most  in  the  compound  that  occasioned  the  mischief." — Wood- 
ward, J.  in  i^aiVroad  v.  A' or/on,  24  Pa.  465  (1855),  p.  469. 

^  In  Railroad  V.  Norton  and  Heil  v.  Glanding,  supra,  emphasis  is  laid  on 
the  necessity  of  keeping  railroad  tracks  clear  of  obstruction  from  uses  not 
legislatively  authorized,  as  a  reason  for  denying  damages  to  one  whose  prop- 
erty, being  on  the  tracks  in  the  course  of  such  use,  is  injured  by  the  negli- 
gent operation  of  the  railroad  engines  or  of  another,  whose  use  of  the  track 
is  equally  unauthorized. 

Benning,  J.  dissenting  in  Macon  &  Western  R.  R.  Co.  v.   Winn,  26  Ga. 


MULLER   V.    MCKESSON.  I363 


SECTION  1. 

Negligence  Contributing  to  an  Injury  as  a  Bar  to  Liability  Aris- 
ing Out  of  Other  Than  Merely  Negligent  Conduct. 


(a)   Conduct  entailing  liability  not  dependent  on  proof  of 

negligence. 


^ 


MULLER  V.  M'KESSON  et  al. 
Court  of  Appeals  of  New  York,  1878.    72>  N.  Y.  195. 

Church,  Ch.  J.  The  defendants  had  a  chemical  factory  in 
Brooklyn  and  owned  a  ferocious  dog  of  the  Siberian  bloodhound 
species,  which  was  kept  in  the  enclosed  yard  surrounding  the  fac- 
tory, and  generally  kept  fastened  up  in  daytime  and  loosed  at  night 
as  a  protection  against  thieves.  The  plaintiff  was  in  the  employ  of 
the  defendants  as  a  night  watchman.  It  was  his  duty  to  open  the 
gate  to  the  yard  every  morning  to  admit  the  workmen,  and  to  do 
this  he  would  pass  from  the  door  of  the  factory  across  a  corner  of 
the  yard  to  the  gate.  On  the  morning  in  question,  as  the  plaintiff 
was  returning  from  opening  the  gate,  he  was  attacked  from  behind 
by  the  dog,  thrown  to  the  ground  and  severely  bitten,  and  after 
freeing  himself,  and  while  endeavoring  to  reach  the  factory,  was 
again  attacked  and  bitten  and  seriously  injured.  L^pon  the  close 
of  the  evidence  and  after  a  motion  for  a  nonsuit  had  been  denied, 
the  judge  decided  that  there  was  no  question  for  the  jury  but  the 
question  of  damages,  to  which 'there  was  an  exception. 

The  points  urged  by  the  appellants  in  this  case  are :    First, 

250  (1858),  after  holding  that  the  plaintiff's  negligence  did  not  bar  an  action, 
but  that  the  damages  recovered  should  bear  such  proportion  to  the  loss  sus- 
tained as  the  defendant's  fault  bore  to  the  joint  fault  of  both  as  the  produc- 
ing cause  thereof  :  "If  denying  an  action,  in  these  cases,  to  the  sufferer,  is 
a  proper  punishment  to  him,  it  is  an  improper  reward  to  the  other  party;  if 
denying  an  action  to  the  sufferer  will  be  a  discouragement  to  future  negli- 
gence in  him,  it  will  be  an  encouragement  to  future  negligence  in  the  other 
party." 

"The  practice  being  thus  established  of  depriving  the  plaintiff  of  all 
remedy,  the  ultimate  justification  of  the  rule  is  in  reasons  of  policy,  viz.,  the 
desire  to  prevent  accidents  by  including  each  member  of  the  community  to 
act  up  to  the  standard  of  due  care  set  by  the  law.  If  he  does  not,  he  is  de- 
prived of  the  assistance  of  the  law.  How  much  influence  the  rule  exerts  to 
accomplish  the  object  aimed  at  can  not  be  known.  That  it  does  exert  some 
influence  is  sure.  A  plaintiff  who  has  learned  the  law  of  contributory  neg- 
ligence by  the  hard  experience  of  losing  a  verdict  is  likely  to  be  more  careful 
in  the  future.  From  his  negligence,  at  least,  accidents  will  be  less  likely  to 
happen." — W.  Schofield,  Esq.,  Contributory  Negligence,  3  Harv.  L.  R.  263 
(1890),  p.  270,  quoted  by  Sir  Frederick  Pollock,  Law  of  Torts,  9th  ed.  473, 
as  expressing  "the  element  of  truth  which  the  penal  theory  presents  in  a  dis- 
torted form." 


1364  STEIN METZ  V.    KELLY. 

That  the  plaintiff  was  guilty  of  contributory  negligence,  or  at  least 
the  evidence  would  have  warranted  the  jury  in  so  finding. 

The  point  as  to  contributory  negligence  presents  the  most  diffi- 
culty. There  are  expressions  in  some  of  the  cases  indicating  that 
the  liability  of  the  owner  is  not  affected  by  the  negligence  of  the 
person  injured.  In  Woolf  v.  Chalk er  (31  Conn.  130)  it  is  said  that 
the  owner  is  liable  "irrespective  of  any  questions  of  negligence  of 
the  plaintiff,"  and  citing  May  v.  Burdett  (9  Ad.  &  El.  (N.  S.),  loi) 
and  Card  v.  Case  (57  Eng.  C.  L.  R.,  622). 

If  a  person  with  full  knowledge  of  the  evil  propensities  of  an 
animal  wantonly  excites  him,  or  voluntarily  and  unnecessarily  puts 
himself  in  the  way  of  such  an  animal,  he  would  be  adjudged  to 
have  brought  the  injury  upon  himself,  and  ought  not  to  be  entitled 
to  recover.  In  such  a  case  it  can  not  be  said,  in  a  legal  sense,  that 
the  keeping  of  the  animal,  which  is  the  gravamen  of  the  offense, 
producing  the  injury.  {Cogsivell n.  Baldzvin,  15  Vt.,  404;  Koney 
V.  Ward,  36  How.  P.  R.,  255 ;  Wheeler  v.  Brant,  23  Barb.,  234 ; 
Blac'uman  v.  Simmons,  3  Car.  &  P.,  138;  Brock  v.  Copeland,  i  Esp., 
203;  Bird  V.  Holbrook,  4  Bing.,  628.)  But  as  the  owner  is  held 
to  a  vigorous  rule  of  liability  on  account  of  the  danger  to  human 
life  and  limb,  by  harboring  and  keeping  such  animals,  it  follows 
that  he  ought  not  to  be  relieved  from  it  by  slight  negligence  or 
want  of  ordinary  care.  To  enable  an  owner  of  such  an  animal  to 
interpose  this  defense,  acts  should  be  proved  with  notice  of  the 
character  of  the  animal,  which  w6uld  establish  that  the  person  in- 
jured voluntarily  brought  the  calamity  upon  himself.  It  is  sufficient 
to  say  that  the  evidence  did  not  show  that  the  plaintiff  had  notice 
that  the  dog  was  loose,  nor  were  the  circumstances  such  as  to  in- 
duce him  to  believe  that  such  was  the  fact.  If  the  negligence  of 
the  plaintiff  is  to  prevail,  it  must  be  predicated  upon  not  taking  the 
precaution  to  look,  examine,  and  ascertain  whether  the  dog  was 
fastened  or  not.  The  plaintiff  might  have  ascertained  by  examina- 
tion whether  the  dog  was  fastened  in  his  kennel  or  not ;  but  I  do 
not  think  he  was  bound  to  exercise  that  degree  of  care,  or  that  the 
defendant  can  be  relieved  from  liability  because  he  did  not. 

As  negligence,  in  the  ordinary  sense,  is  not  the  ground  of  lia- 
bility, so  contributory  negligence,  in  its  ordinary  meaning,  is  not 
a  defense.^ 


ih 


(b)   Conduct  intentionally  injurious. 


STEINMETZ  v.  KELLY. 

Supreme  Court  of  Indiana,  1880.     72  Ind.  442. 

WoRDEN,  J.     Action  by  the  appellee  against  the  appellant  for 
assault  and  battery.     The  complaint  consisted  of  three  paragraphs, 

\iccord:  Brooks  v.  Taylor,  65  Mich.  208  (1887);  Fake  v.  Addicks.  45 
Minn.  37  (1890)  :  and  see  Kelly  v.  Killourey  and  Peck  v.  Williams,  note  to 
Schutt  V.  Adair,  post,  p.  1375. 


STEIN METZ  V.   KELLY.  1 365 

a  demurrer  to  each  of  which,  for  want  of  sufficient  facts,  was  over- 
ruled. The  first,  the  only  one  to  which  any  specific  objection  is 
made  in  this  Court,  alleged  that  the  defendant,  on,  &c.,  "violently 
and  unlawfully  assaulted  the  plaintifif,  and  struck  him,  and  also 
threw  him,  the  plaintiff,  from  the  house  of  the  defendant  on  to  the 
street  pavement,  in  front  of  the  defendant's  house,  with  great  vio- 
lence, fracturing,"  &c. 

The  defendant  asked  that  the  following  interrogatory  be  an- 
swered by  the  jury,  if  they  should  return  a  general  verdict,  viz.: 
"Did  the  fault  or  negligence  of  the  plaintiff  contribute  in  any  way 
to  the  injury  of  the  plaintiff,  received  on  the  evening  of  the  3d  of 
March,  1876?"  The  Court  declined  to  direct  the  jury  to  answer 
the  interrogatory,  and  in  this  way  we  think  no  error  was  committed. 

The  right  of  the  plaintiff'  to  recover  depended  not  upon  any 
negligence  of  the  defendant,  but  upon  the  assault  and  battery,  which, 
if  perpetrated  at  all  by  the  defendant,  was  intentional  and  purposed. 
It  may  be  that  the  defendant  did  not  intend  to  inflict  so  severe  an 
injury  upon  the  plaintiff  as  seemed  to  result  from  the  excess  of 
force  applied  to  him ;  but  it  does  not  therefore  follow  that  he  did 
not  intend  to  apply  that  force. 

The  doctrine  that  contributory  negligence  on  the  part  of  the 
plaintiff  will  defeat  his  action  has  been  generally  applied  in  actions 
based  on  the  negligence  of  the  defendant,  in  short,  in  cases  involv- 
ing mutual  negligence.  But  it  has  also  been  applied  in  some  cases 
where  the  matter  complained  of  was  not  negligent  merely,  but  the 
commission  of  some  act  in  itself  unlawful,  without  reference  to  the 
manner  of  committing  it,  as  the  wilful  and  unauthorized  obstruc- 
tion of  a  highway,  whereby  a  person  is  injured.  Butterficld  v.  For- 
rester, II  East,  60;  Dygert  v.  Schenk,  23  Wend.  446. 

The  doctrine,  however,  can  have  no  application  to  the  case  of 
an  intentional  and  unlawful  assault  and  battery,  for  the  reason  that 
the  person  thus  assaulted  is  ur^der  no  obligation  to  exercise  any  care 
to  avoid  the  same  by  retreating  or  otherwise,  and  for  the  further 
reason  that  his  want  of  care  can  in  no  just  sense  be  said  to  contribute 
to  the  injury  inflicted  upon  him  by  such  assault  and  battery. 

An  intentional  and  unlawful  assault  and  battery  inflicted  upon 
a  person  is  an  invasion  of  his  right  of  personal  security,  for  which 
the  law  gives  him  redress,  and  of  this  redress  he  can  not  be  deprived 
on  the  ground  that  he  was  negligent  and  took  no  care  to  avoid  such 
invasion  of  his  right. 

The  trespass  was  purposely  committed  by  the  defendant.  Tf  he 
could  excuse  it  on  the  ground  of  the  alleged  misconduct  of  the  plain- 
tiff', and  if  he  employed  no  more  force  than  was  necessary  and  rea- 
sonable, that  was  a  complete  defence.  Otherwise  the  plaintiff",  if 
he  made  out  the  trespass,  was  entitled  to  recover,  and  no  negligence 
on  his  part,  a?  before  observed,  could  defeat  his  action.  The  case  of 
Ruter  V.  Foy,  46  Iowa,  132,  is  in  point.  There  the  plaintiff  alleged 
that  the  defendant  had  assaulted  and  beat  her  with  a  pitchforlc 
On  the  trial  the  defendant  asked,  but  the  Court  refused,  the  follow- 
ing instruction:    "If  you  find  from  the  evidence  that  the  plaintiff 


1366  ALGER,  SMITH   &  CO.  V.  DULUTH-SUPERIOR  TRAC.  CO. 

was  injured,  or  contributed  to  her  injury,  by  her  own  act  or  negli- 
gence, defendant  would  not  be  liable  for  assault  and  battery  upon 
her,  and  plaintiff  can  not  recover."  On  appeal  the  Court  said  upon 
this  point :  "The  doctrine  of  contributory  negligence  has  no  appli- 
c'ation  in  an  action  for  assault  and  battery." 

The  case  here  is  entirely  unlike  that  of  Brown  v.  Kendall,  6 
Cush.  292.     *     *     * 

The  difference  between  that  case  and  the  present  is  substantial 
and  vital.  In  that  case  the  battery  was  unintentional,  and  the  de- 
fendant therein  was  guilty  of  no  wrong  save  his  negligence.  Here 
the  defendant  intentionally  perpetrated  the  battery,  and  the  plain- 
tiff's right  to  recover  was  not  based  upon  the  negligence  of  the  de- 
fendant at  all. 

Judgment  affirmed.^ 


(c)  Wilful,  wanton  and  reckless  misconduct. 


Start,  C.  J.  in  Alger,  Smith  &  Co.  v.  Duluth-Superior  Traction  Co. 

Supreme  Court  of  Minnesota,  1904.    93  Minn.  314. 

"There  is  a  well-defined  distinction  between  ordinary  negli- 
gence and  wilful  or  wanton  negligence.  Ordinary  negligence  is 
not  actionable  if  the  negligence  of  the  injured  party  directly  con- 
tributed to  the  result,  but  liability  is  incurred  by  wilful  negligence 
irrespective  of  such  contributory  negligence.  Wilful  negligence  is 
not  simply  greater  negligence  than  that  of  the  injured  party,  nor 
does  it  necessarily  include  the  element  of  malice  or  an  actual  intent 
to  injure  another.  But  it  is  a  reckless  disregard  of  the  safety  of 
the  person  or  property  of  another  by  failing,  after  discovering  the 
peril,  to  exercise  ordinary  care  to  prevent  the  impending  injury. 
Fonda  v.  St.  Paul  City  Ry.  Co.,  71  Minn.  450,  74  N.  W.  166;  Slo- 
niker  v.  Great  Northern  Ry.  Co.,  76  INIinn.  306,  79  N.  W.  168; 
Lando  v.  Chicago,  St.  P.  M.  &  O.  Ry.  Co.,  81  Minn.  279,  83  N.  W. 
1089 ;  Olson  V.  Northern  Pac.  Ry.  Co.,  84  Minn.  258,  87  N.  W.  843 ; 
Razmtser  v.  St.  Paul  City  Ry.  Co.,  supra,  page  84."^ 

^Accord:  Birmingham  R.,  Light  &  Power  Co.  v.  Jones,  146  Ala.  277 
(1906) ;  Louisville  N.  A.  &  C.  R.  Co.  v.  Wurl,  62  111.  App.  381  (1896)  ;  Cleve- 
land C.  C.  &  St.  L.  R.  Co.  V.  Miller,  149  Ind.  490  (1898)  :  Brendle  v.  Spencer, 
125  N.  Car.  474  (1899);  see  also,  Serge  v.  Gardner,  19  Conn.  507  (1849), 
scmhle;  Florida  So.  R.  Co.  v.  Hirst.  30  Fla.  1  (1892),  semble;  Labarge  v. 
Fere  Marquette  R.  Co.,  134  Mich.  139  (1903),  semble,  and  Wynn  v.  Allard,  5 
Watts  &  S.  524  (Pa.  1843). 

^Accord:  Wabash  R.  Co.  v.  Speer,  156  111.  244  (1895),  Schumacher  v.  St. 
Louis  &  S.  F.  R.  Co.,  39  Fed.  174  (1889)  and  cases  cited  in  note  2  to  Cava- 
naiigh  v.  Boston  &  ^L  R.  Co.,  post,  p.  1400,  and  see  the  language  of  Holmes,  J. 
in  Pierce  v.  Cunard  S.  S.  Co.,  153  Mass.  87  (1891).  In  many  of  the  cases  the 
defendant's  conduct  showed  a  real  conscious  indifference  to  the  safety  of  the 
plaintiff  or  his  property,  Pierce  v.  Cunard  S.  S.  Co.,  153  Mass.  87   (1891); 


BIRMINGHAM,    ETC.,   ELEC.    CO.   V.    BOWERS.  1 367 

CoLEMAX,,  J.,  in  Birmingham  Raikvay  &  Electric  Company  w 
Dowers: 

Supreme  Court  of  Alabama,  1S95.     110  Ala.  328. 

"Mere  negligence  which  gives  a  cause  of  action  is  the  doing 
of  an  act,  or  the  omission  to  act,  which  results  in  damage,  but  with- 
out intent  to  do  wrong  or  cause  damage.  To  constitute  a  wilful 
injury,  there  must  be  design,  purpose,  intent  to  do  wrong  and  in- 
flict the  injury.  Then  there  is  that  reckless  indifference  or  disre- 
gard of  the  natural  or  probable  consequence  of  doing  an  act,  or 
omission  of  an  act,  designated,  whether  accurately  or  not,  in  our 
decisions,  as  'wanton  neghgence,'  to  which  is  imputed  the  same  de- 
gree of  culpability  and  held  to  be  equivalent  to  wilful  injury.  A 
purpose  or  intent  to  injure  is  not  an  ingredient  of  wanton  negli- 
gence. Where  either  of  those  exist,  if  damage  ensues,  the  injury 
is  wilful.  In  wanton  negligence,  the  party  doing  the  act  or  failing 
to  act,  is  conscious  of  his  conduct,  and  without  having  the  intent 
to  injure,  is  conscious,  frotn  his  knowledge  of  existing  circumstances 
and  conditions,  that  his  conduct  will  likely  or  probably  result  in 
injury.^  A  mere  error  of  judgment  as  to  the  result  of  doing  an 
act  or  the  omission  of  an  act,  having  no  evil  purpose  or  intent,  or 
consciousness  of  probable  injury,  may  constitute  simple  negligence. 


Indianapolis  B.  &  W.  R.  Co.  v.  McBroivn,^6  Ind.  229  (1874).  In  other 
cases  no  such  conscious  indifference  was  exhibited. 

Where  the  plaintiff's  negligence  is  subsequent  to  the  defendant's  so-called 
reckless  or  wanton  negligence,  as  where  by  the  mere  use  of  senses  hecouki 
discover  his  peril  and  avoid  the  injury,  manv  cases  hold'  that  such  negligence 
bars  liability,  Scgo  v.  So.  Pac.  R.  Co.,  137  Cal.  405  (1902)  ;  Olson  v.  A^.  P.  R. 
Co.,  84  Minn.  258  (1901);  Raivitzer  v.  St.  Paul  City  R.  Co.,  93  Mmn.  84 
(1904)  ;  Labarge  v.  Pcre  Marquette  R.  Co.,  134  Mich.  139;  Pcnna.  R.  Co.  v. 
McGirr,  61  Md.  108  (1883)  ;  Texas  &  N.  O.  R.  Co.  v.  Brown,  2  Tex.  Civ. 
App.  281  (1893),  21  S.  W.  424,  antl  see  Knowlton,  J.  in  Aiken  v.  Holyoke  R. 
Co.,  note  2  to  Pinoza  v.  Northern  Chair  Co.,  post,  p.  1377,  contra,  Central  of 
Ga.  R.  Co.  V.  Partridge,  136  Ala.  587  (1902). 

^See  McClellan,  J.  in  Ga.  Pac.  R.  Co.  v.  Lee,  92  Ala.  262  (1890),  p.  270, 
such  conduct  "is,  strictly  speaking,  not  negligence  at  all,  though  the  term 
'gross  negligence' has  been  *  *  *  frequently  used  in  defining  it.  *  *  * 
It  is  more  than  any  degree  of  negligence,  inattention  or  inadvertence— which 
can  never  mean  other  than  the  omission  of  action  without  intent,  existing 
or  imputed,  to  commit  wrong— it  is  that  recklessness  or  wantonness,  or 
worse,  which  implies  a  willingness  to  inflict  the  impending  injury,  or  a  wil- 
fulness in  pursuing  a  course  of  conduct  which  will  naturally  or  probably 
result  in  disaster,  or  an  intent  to  perpetrate  wrong."  See  also,  Mitchell.  J. 
in  Louisville,  New  Albanv  &  Chicago  R.  Co.  v.  Bryan.  107  Ind.  51  (1886)  ; 
and  compare  JVvnn  v.  Allard,  5  W.  &  S.  524  (Pa.  1843),  where  the  court 
held  that  if  the  plaintiff,  who  was  walking  in  the  driveway,  was  negligent  in 
not  keeping  a  lookout  for  vehicles,  "the  defendant  would  be  answerable  only 
for  negligence  so  wanton  and  gross  as  to  be  evidence  of  voluntary  injury," 
with  the  statements  of  ^Marshall,  J.  in  Asfin  v.  Chicago  M.  &  St.  P.  R.  Co., 
143  Wis.  477  (1910),  p.  484,  to  the  effect  that  wanton  negligence  requires  an 
advertent  act  or  omission  "evincing  intention  to  produce"  the  injury  or  done 
or  omitted  "with  disregard  of  consequences  as  to  evince  little  short  of  actual 
intent,"  BoUn  v.  Chicago  St.  P.,  M.  &  O.  R.  Co.,  108  Wis.  2?>Z  (1900),  p.  347, 
and  Knowlton,  C.  J.  in  Aiken  v.  Holyoke  St.  R.  Co.,  184  Mass.  269  (1903). 
"if  one  is  grossly  and  w^antonly  reckless  in  exposing  others  to  danger,  (the 
law)  holds  him  to  have  intended  the  natural  consequences." 


1368  ATCHISON,  TOPEKA,  ETC.,  R.  CO.  Z'.  I'.AKER. 

but   can   not    rise   to  the   degree   of   wanton   negligence    or    wilful 
wrong."^ 


THE  ATCHISON,  TOPEKA  &  SANTA  FE  RAILWAY  CO.  v. 

BAKER. 

Supreme  Court  of  Kansas,  1908.     79  Kans.  183. 

Mason,  J.  Sarah  E.  Baker  was  killed  by  a  train  of  the  Atchi- 
son, Topeka  &  Santa  Fe  Railway  Company  in  a  street  of  Olathe. 
An  administrator  recovered  a  judgment  on  this  account,  from  which 
the  company  prosecutes  error.  The  special  findings,  supplemented 
by  the  general  verdict,  may  be  deemed  to  have  established  these 
facts : 

Mrs.  Baker  was  71  years  old.  Her  home  was  in  the  middle 
of  a  block  facing  east  upon  a  street  sixty  feet  wide,  along  which 
ran  two  railroad  tracks  about  twelve  feet  apart,  equidistant  from 
the  middle  of  the  street,  the  space  between  them  being  filled  in  with 
cinders  and  in  common  use  by  foot  travelers.  Most  persons  going 
along  the  street  on  foot,  especially  when  it  was  muddy,  used  this 
ballasted  portion.  There  was  no  sidewalk  upon  the  side  of  the 
street  where  Mrs.  Baker  lived.  About  three  o'clock  in  the  after- 
noon of  the  day  of  her  death  she  left  her  house,  crossed  the  planks 
over  the  ditch,  and  w^as  struck *and  killed  by  a  north-bound  freight, 
train  running  on  the  nearer  track  at  the  rate  of  fifteen  miles  an 
hour,  neither  the  bell  nor  the  whistle  having  been  sounded  after 
the  engine  passed  the  depot.  The  train  did  not  stop  at  the  depot, 
but  went  through  'the  town,  in  accordance  with  custom,  with  steam 
cut  oil,  the  grade  permitting  this.  Every  point  on  the  track  taken 
by  the  deceased  from  her  fence  to  the  track  commanded  an  unin- 
terrupted view  of  the  track  to  the  south  for  a  distance  of  three- 
quarters  of  a  mile.  The  engineer  and  fireman  could  have  seen  Mrs. 
Baker  at  the  place  where  she  was  killed  if  they  had  been  on  the 
lookout,  but  not  having  kept  a  careful  watch  ahead  of  the  engine 
they  did  not  see  her  at  all.  A  city  ordinance  limited  the  speed  of 
trains  to  six  miles  an  hour. 

But  the  jury  did  not  find  that  the  accident  was  due  to  the  reck- 
less and  wanton  misconduct  of  the  employees  in  charge  of  the  en- 
girle,  and  this  finding,  if  it  stands,  renders  the  matter  of  contributory 
negligence  immaterial.  With  regard  to  this  the  railroad  company 
makes  two  contentions:  (i)  That  the  evidence  did  not  justify  sub- 
mitting to  the  jury  the  question  of  recklessness  and  wantonness, 
and  (2)  that,  if  so,  there  was  error  in  the  instructions  on  the  sub- 
ject. 

As  the  employees  did  not  see  Mrs.   Baker,  such  recklessness 


'Accord:  Willis  v.  Boston  &  N.  St.  R.  Co.,  208  Mass.  589  (1911); 
Branncn  V.  Kokotno  G.  &  J.  Gravel  Road  Co.,  115  Ind.  115  (1888),  toll-sate 
keeper  closed  gate  in  front  of  plaintiff's  horses,  supposing  he  was  intendir.c: 
to  pass  without  paying  toll,  held  that  the  company  was  liable  only  if  the 
circumstance  clearly  indicated  that  it  was  highly  probable  that  the  horsts 
would  run  against  it. 


ATCHISON^  TOPEKA,  ETC.,  R.  CO.  V.  BAKER.  ^3^J 

and  wantonness  on  their  part  as  to  render  the  company  liable  not- 
withstanding her  contributory  negligence  can  only  be  attributed  to 
them  upon  the  theory  that  to  their  knowledge  the  public  street  near 
the  place  of  the  accident  was  in  such  general  use  that  they  must 
be  deemed  to  have  understood  that  foot-travelers  were  likely  to 
be  there,  and  understanding  this  to  have  chosen  to  omit  all  warn- 
ing of  the  approach  of  the  engine,  not  necessarily  because  they  af- 
firmatively desired  to  kill  or  maim  any  one,  but  because  they  were 
entirely  indifferent  whether  they  did  so  or  not.  The  running  of  a 
train  at  an  excessive  speed  along  or  across  a  busy  street  of  a  popu- 
lous city,  without  either  outlook  or  signal,  may  well  be  held  to 
exhibit  such  contempt  for  the  rights  of  others  as  to  supply  the  place 
of  positive  malice.  Thus,  in  Ga.  Pacific  Raihvay  Co.  v.  Lee,  92  Ala. 
262,  9  South.  ,230,  it  was  said : 

"To  run  a  train  at  a  high  rate  of  speed,  and  without  signals  of 
approach,  at  a  point  where  the  trainmen  have  reason  to  believe 
there  are  persons  in  exposed  positions  on  the  track,  as  over  an  un- 
guarded crossing  in  a  populous  district  of  a  city,  or  where  the  public 
are  wont  to  pass  on  the  track  with  such  frequency  and  in  such  num- 
bers— facts  known  to  those  in  charge  of  the  train — as  that  they 
will  be  held  to  a  knowledge  of  the  probable  consequences  of  main- 
taining great  speed  without  warnings,  so  as  to  impute  to  them  reck- 
less indifference  in  respect  thereto,  would  render  their  employer 
liable  for  injuries  resulting  therefrom,  notwithstanding  there  was 
negligence  on  the  part  of  those  injured,  and  no  fault  on  the  part 
of  the  servants  after  seeing  the  danger.  The  doctrine  is  not  based 
on  the  idea  that  they  ought  to.  have  sooner  observed  the  danger, 
however,  but  on  the  ground  that  they  knew  of  its  existence — of  the 
presence  of  people  in  positions  of  peril,  as  a  matter  of  fact,  without 
seeing  them  at  all  in  the  particular  instance."^     (Page  271). 

The  conduct  of  the  employees  in  charge  of  an  engine  in  fail- 
ing to  take  measures  for  the  protection  of  a  person  upon  the  track 
can  be  characterized  as  "wanton,"  in  the  sense  in  which  that  word 
is  used  in  this  connection,  only  when  they  actually  know  of  his 
presence,  or  when  the  situation  is  substantially  the  same  as  though 
they  had  such  knowledge — when  such  knowledge  may  fairly  be  im- 
puted to  them.  It  is  not  enough  for  that  purpose  that  the  exercise 
of  ordinary  diligence  would  have  advised  them  of  the  fact,  for  their 


*  This  AlcClcUan,  J.  calls  "a  shading"  of  the  doctrine  previously  consid- 
ered, viz. :  that  it  is  "recklessness,  wantonness,  or  worse"  not  to  resort  to  all 
reasonable  effort  to  prevent  disaster,  after  the  plaintiff's  peril  "has  become 
known  to  the  defendants  as  a  fact,  and  not  merely  after  they  should  have 
known  it."  In  Ga.  Pae.  R.  Co.  v.  Lee,  the  court  held  that  there  was  no  evi- 
dence to  show  tiiat  the  crossing  was  "a  crowded  thoroughfare,"  "at  most  it 
was  the  crossing  of  a  considerably  travelled  public  road  over  the  railway  and 
there  was  nothing  in  the  situation  *  *  *  assuming  that  it  was  well  known 
to  the  trainmen,  to  justify  the  imputation  to  them  of  a  consciousness  that  a 
natural  or  a  probable  result  of  their  conduct  would  be  the  infliction  of  injury 
to  persons  or  property  at  that  point.  We  apprehend  that  the  maintenance  of 
even  a  high  rate  of  speed,  and  omission  to  give  signals,  in  approaching  such 
a  crossing  can  be  no  more  than  negligence,  in  an  action  counting  on  which 
contributory  negligence  would  be  a  good  defense." 


1370  ATCHISON,  TOPEKA,  ETC.,  R.  CO.  V.  BAKER. 

omission  of  duty  in  that  regard  amounts  only  to  negligence.  Nor 
is  it  enough  that  they  know  some  one  might  be  in  the  place  of  dan- 
ger; the  probability  must  be  so  great — its  obviousness  to  the  em- 
ployees so  insistent — that  they  must  be  deemed  to  realize  the  likeli- 
hood that  a  catastrophe  is  imminent  and  yet  to  omit  reasonable 
effort  to  prevent  it  because  indifferent  to  the  consequences.  The 
evidence  here  falls  short  of  that  in  the  cases  from  v^'hich  the  fore- 
going quotations  are  made  only  in  the  size  of  the  city  and  the  amount 
of  travel  over  its  streets,  the  difference  being  one  of  degree.-  It 
affords  a  relatively  slight  basis  for  imputing  to  the  engineer  or  fire- 
man what  amounts  almost  to  a  knowledge  of  the  decedent's  danger, 
but  we  conclude  that  it  was  sufficient  to  entitle  the  plaintiff  to  go 
to  the  jury  on  this  issue. 

The  fact  that  the  evidence  tending  to  charge  the  engineer  and 
fireman  with  knowledge  that  there  was  likely  to  be'  some  one  on 
the  track  at  the  place  of  the  accident  was  so  meager  makes  it 
especially  important  to  consider  carefully  whether  the  jury  are  fully 
advised  of  the  degree  of  turpitude  the  verdict  attributed  to  these 
employees.  The  instructions,  after  stating  that  contributory  negli- 
gence would  not  defeat  a  recovery  if  the  negligence  of  the  agents 
of  the  defendant  was  wanton  and  reckless,  defined  these  terms  as 
follows : 

"Recklessness  is  an  indifference,  whether  wrong  is  done  or  not,  an  indif- 
ference to  the  rights  of  others.  Wanton  negligence  is  the  failure  of  one 
charged  with  a  duty  to  exercise  an  honest  effort  in  the  employment  of  all 
reasonable  means  to  prevent  a  serious  injury." 

If  it  had  been  established  that  the  engineer  or  fireman  saw  Mrs. 
Baker  on  or  near  the  track  these  definitions  might  have  been  suffi- 
cient, for  their  language  would  be  understood  as  used  with  reference 
to  that  situation.  But  as  the  jury  found  this  fact  not  to  exist  it  was 
necessary  that  they  should  be  told  what  other  conditions  would  re- 
place that  of  actual  knowledge.  This  information  was  not  given 
them  in  any  part  of  the  charge. 

The  duty  referred  to,  the  disregard  of  which  amounts  to  wan- 
tonness, is  manifestly  that  which  arises  only  when  the  person  charged 
with  dereliction  has  knowledge  of  the  danger  or  of  the  facts  which 
impute  that  knowledge  to  hiin.  On  account  of  the  omission  of  the 
instructions  to  cover  this  feature  of  the  matter  a  new  trial  will  be 
ordered.  The  effect  of  the  omission  was  intensified  by  employing 
the  term  "gross  negligence"  in  one  part  of  the  charge  as  the  equiva- 
lent of  "wanton  recklessness,"  and  in  another  defining  it  as  the  want 
of  slight  care.  Although  what  is  really  reckless  and  wanton  mis- 
conduct is  sometimes  spoken  of  as  gross  negligence,  the  expression 
is  everywhere  recognized  as  inaccurate  and  unfortunate,  because  it 
seems  to  imply  a  difference  only  of  degree,  whereas  the  whole  doc- 
trine that  contributory  negligence  is  no  defense  where  the  injury 


"  Compare  Ga.  Pac.  R.  Co.  v.  Lee,  supra,  with  Memphis  R.  Co.  v.  Martin, 
117  Ala.  367  (1897). 


CAYZAR,  IRVINE  &  CO.  V.  CARRON  CO.  137 1 

is  the  result  of  recklessness  and  wantonness  is  based  upon  the  theory 
of  a  difference  in  kind.^  For  the  same  reason  the  phrase  "reckless 
and  wanton  negligence"  has  a  misleading  tendency.  One  who  is 
properly  charged  with  recklessness  or  wantonness  is  not  simply  more 
careless  than  one  who  is  only  guilty  of  negligence ;  his  conduct  must 
be  such  as  to  put  him  in  the  class  with  the  wilful  doer  of  wrong.* 
The  only  respect  in  which  this  attitude  is  less  blameworthy  than 
that  of  the  intentional  wrong-doer  is  that  instead  of  afifirmatively 
wishing  to  injure  another  he  is  merely  willing  to  do  so.  The  differ- 
ence is  that  between  him  who  casts  a  missile  intending  that  it  shall 
strike  another  and  him  who  casts  it  where  he  has  reason  to  believe 
it  will  strike  another,  being  indifferent  whether  it  does  so  pr  not. 
The  judgment  is  reversed  and  a  new  trial  ordered.^  ' 


(d)  The  Admiralty  rule  of  divided  damages. 


-i^V 


CAYZER,  IRVINE  &  CO.  v.  CARRON  CO. 

House  of  Lords„\%U.    L.  R.  1883-84,  9  Appeal  Cases,  873. 

Lord  Blackburn.  When  the  cause  of  the  accident  is  the  fault 
of  both,  each  party  being  guilty  of  blame  which  causes  the  accident, 
there  is  a  difference  between  the  rule  of  Admiralty  and  the  rule  of 
Common  Law.  The  rule  of  Common  Law  says,  as  each  occasioned 
the  accident  neither  shall  recover  at  all,  and  it  shall  be  just  like  an 
inevitable  accident;  the  loss  shall  he  where  it  falls.  Admiralty  says, 
on  the  contrary,  if  both  contributed  to  the  loss  it  shall  be  brought 
into  a  hotchpotch  and  divided  between  the  two.     Until  the  case  of 


^See  Banks  v.  Braman,  188  Mass.  367  (1905),  and  amended  head-note 
thereto  in  192  Mass.  162;  and  see  Land  v.  Boston  El.  R.  Co.,  197  Mass.  32 
(1907). 

*  His  conduct  is  often  spoken  of  as  "criminal  or  quasi  criminal",  Knowl- 
ton,  C.  J.,  in  Aiken  v.  Holyoke  St.  R.  Co.,  184  Mass.  269  (1903),  Mitchell,  J., 
in  Louisville,  N.  A.  &  C.  R.  Co.  v.  Bryan,  107  Ind.  51  (1886). 

"Accord:  Lacev  v.  Louiszille  &  N.  P.  R.  Co.,  152  Fed.  134  (1907); 
Schindler  v.  Milwaukee,  L.  S.  &  IV.  R.  Co.,  87  Mich.  400  (1891).  and  Bir- 
mingham  So.  R.  Co.  v.  Poivell,  136  Ala.  232  (1902),  flying  switch  without 
any  one  on  cars  to  keep  lookout  and  control  them;  Memphis  &c.  R.  Co.  v. 
Martin,  117  Ala.  367  (1897),  Lake  Shore  etc.  R.  Co.  v.  Bodener,  139  111.  596 
(1892),  and  Ncary  v.  Northern  Pac.  R.  Co..  37  Mont.  461  (1906),  trains  run 
at  high,  in  some  cases  illegal,  speed  without  proper  signals  over  frequented 
crossings  or  through  citv  streets;  Cooper  v.  Lake  Shore  ir  Michigan  So.  R. 
Co.,  66  Mich.  261  (1887),  and  Labarge  v.  Prrc  Marquette  R.  Co.,  134  Mich. 
139  (1903),  train  backed  without  lookout  being  kept  at  the  crossing;  Mapcs 
V.  Union  R.  Co.,  56  App.  Div.  508  (.\.  Y.  1900),  trolley  car  running  at  high 
speed  with  motorman  asleep  at  his  post.  Contra:  Louisville,  N.  A.  &  C.  R. 
Co.  V.  Schmidt,  106  Ind.  73  (1885),  and  Louisville,  N.  A.  &  C.  R.  Co.  v.  Bryan, 
107  Ind.  51  (1886).  facts  similar  to  Lacev's  case;  Brooks  v.  Pittsburgh,  C.  C. 
&  St.  L.  R.  Co.:  158  Ind.  62  (1901),  and  Brozvn  v.  Chicago  &  N.  W.  R.  Co., 
109  Wis.  384  (1901),  facts  similar  to  Memphis  R.  Co.  v.  Martin;  Baker  v. 
Tacoma  E.  R.  Co.,  44  Wash.  575  (1906),  facts  similar  to  Cooper's  case. 

^  .  V 


1372  GALEXA,  ETC.,  R.  CO.  f.  JACOBS. 

Hay  V.  Le  Neve,  2  Shaw,  Sc.  App.  395,  which  has  been  referred 
lo  in  the  argument,  there  was  a  question  in  the  Admiralty  Court 
whether  you  were  not  to  apportion  it  according  to  the  degree  in 
which  they  were  to  blame ;  but  now  it  is,  I  think,  quite  settled,  and 
there  is  no  dispute  about  it,  that  the  rule  of  the  Admiralty  is,  that 
if  there  is  blame  causing  the  accident  on  both  sides  they  are  to 
divide  the  loss  equally,  just  as  the  rule  of  law  is  that  if  there  is 
blame  causing  the  accident  on  both  sides,  however  small  that  blame 
may  be  on  one  side,  the  loss  lies  where  it  falls. ^ 


-tn 


(e)   Comparative  negligence. 


Breese,  J.,  in  Galena  &  Chicago  Union  Railroad  Company  v.  Jacobs, 
Supreme  Court  of  Illinois.  1858,  20  111.  478,  496 : 

"It  will  be  seen,  from  these  (English  and  American)  cases,  that  the 
question  of  liability  does  not  depend  absolutely  on  the  absence  of  all  negli- 
gence on  the  part  of  the  plaintifif,  but  upon  the  relative  degree  of  care  or 
want  of  care,  as  manifested  by  both  parties;  for  all  care  or  negligence  is  at 
best  but  relative,  the  absence  of  the  highest  possible  degree  of  care  showing 


^Accord:  The  "North  Star;'  106  U.  S.  17  (1882)  ;  see  also  case  cited  in 
the  opinion  of  Blatchford,  J.,  in  the  Max  Morris,  infra. 

This  is  not  confined  to  cases  of  collision  or  other  injuries  to  shipping. 
One.  receiving  personal  injuries,  through  the  negligent  operation  or  defective 
condition  of  a  ship  or  wharf  is  not  barred  by  his  contributory  fault  but  may 
recover  divided  damages.  M;ix  Morris.  137  U.  S.  1  (1890),  but  the  court  in 
that  case  refused  to  decide  whether  in  such  case  the  damages  should  be 
equally  divided  or  whether  it  should  be  in  the  discretion  of  the  court  to 
award  a  greater  or  less  proportion  thereof.  While  on  the  whole  the  tend- 
ency of  the  admiralty  courts  in  the  United  States  is  towards  an  equal  divi- 
sion of  the  damage,  both  in  case  of  collision  and  of  personal  injuries,  Tlic 
C.  R.  Hoyt.  136  Fed.  671  (1905);  The  Moran,  143  Fed.  187  (1906);  there 
are  decisions  and  dicta  to  the  effect  that  the  damages  should  be  awarded  in 
proportion  to  the  respective  faults  of  such  parties,  as  in  France,  Germany 
and  certain  other  European  countries.  The  ^lary  Ida.  20  Fed.  741  (1884)  ; 
The  Victory,  68  Fed.  395  (1895),  where  the  question  actually  dealt  with  was 
the  respective  amounts  which  two  negligent  ships  should  pay  to  an  owner  of 
the  cargo,  himself  in  no  fault;  The  Lackawanna,  151  Fed.  499  (1907).  one- 
third  damages  allowed:  Jl'illiain  .Johnson  Co.  v.  Johansen,  86  Fed.  886 
(1898),  in  which  the  court,  however,  held  that  the  negligence  of  the  libellant 
and  the  ship  being  equal,  that  the  libellant  should  recover  one-half  of  the 
damages  sustained  by  an  injury  to  his  person.  See  for  a  synopsis  of  the 
various  rules  in  force  in  the  various  maritime  nations.  Leslie  F.  Scott,  Esq.. 
"Collisions  at  Sea,"  etc., -13  Law  Quarterly  Rev.  17  (1897),  especially  pp.  17 
and  18.  and  Lyon-Caen  &  Renault,  Traite  de  Droit  Commercial,  3rd  ed.,  1902, 
Vol.  VI.  §  1011. 

The  admiralty  rule  is  equally  applicable  to  determine  the  shares  which 
two  ships  must  pay  in  compensation  for  the  injury  received  by  a  libellant 
innocent  of  contributory  fault.  The  Jlcfory.  68  Fed.  395   (1895). 

The  principle  that  a  plaintiff  whose  negligence  contributed  to  his  harm 
:ould  still  recover  but  that  his  damages  should  be  diminished  in  proportion 
to  the  share  which  his  own  fault  had  in  producins:  his  iniurv.  was  announced 
in  Macon  &  IV.  R.  Co.  v.  Winn.  26  Ga.  250  (1858).  bv  Benning.  J.,  and  the 
subsequent  Georgia  Codes.  1882.  sec.  3034.  code  1895,  sec.  2322.  code  1911.  sec. 
2^f^nacts  this  rule  in   actions  to  recover  against  railroads   for  injuries 


SCHUTT  V.   ADAIR.  1373 

the  presence  of  some  negligence,  slight  as  it  may  be.  The  true  doctrine, 
therefore,  we  think  is,  that  in  proportion  to  the  negligence  of  the  defendant, 
should  be  measured  the  degree  of  care  required  of  the  plaintiff, — that  is  to 
say,  the  more  gross  the  negligence  manifested  by  the  defendant,  the  less  de- 
gree of  care  will  be  required  of  the  plaintiflF_to  enable  him  to  recover." 

"We  say,  then,  that  in  this,  as  in  all  like  cases,  the  degree  of  negligence 
must  be  measured  and  considered,  and  wherever  it  shall  appear  that  the 
plaintiffs  negligence  is  comparatively  slight,  and  that  of  the  defendant  gross, 
he  shall  not  be  deprived  of  his  action." 


Magruder,  J.,  in  Lanark  v.  Dougherty,  Supreme  Court  of  Illinois,  1894, 
153  111.  163,  165: 

"It  is  said,  of  two  of  these  instructions,  that  they  ignore  the  rule  of  com- 
parative negligence.  The  doctrine  of  comparative  negligence  is  no  longer 
the  law  of  this  court.  The  instructions  in  the  present  case  require  the  jury 
to  find  that  the  plaintiff  was  exercising  ordinary  care,  and  that  the  defend- 
ant was  guilty  of  such  negligence  as  produced  the  injury.  This  was  suffi- 
cient, without  calling  the  attention  of  the  jury  to  any  nice  distinctions  be- 
tween degrees  of  care  or  of  negligence." 


SECTION  2. 

Contributory  Negligence  as  a  Bar  to  Liability  for  the  Breach  of 

Statutory  Duty. 


SCHtn^T  V.  ADAIR. 
Supreme  Court  of  Minnesota,  1906.    99  Minn.  7. 

Brown,'  J.  One  of  the  defenses  interposed  at  the  trial  was  that 
]:)laintiff  was  guilty  of  contributory  negligence,  which  the  jury  by 
their  verdict  sustained.  Upon  this  subject  the  court  charged  the  jury 
as  follows : 

The  jury  are  instructed  that  it  was  the  duty  of  the  ])laintitT 
on  his  second  visit  to  defendants'  warehouse  on  the  day  of   the 

to  persons  or  property,  see  Alabama  G.  S.  R.  Co.  v.  Coggins,  88  Fed.  455 
(1898)  :  while  in  sec.  29972.  code  1898,  sec.  3830,  code  of  1895,  sec.  4426,  code 
of  1911,  it  is  provided  that  "if  the  plaintiff"  by  ordinary  care  could  have 
avoided  the  consequences  to  himself  caused  by  the  defendants'  negligence  he 
is  not  entitled  to  recover;  but  in  other  cases  the  defendant  is  not  relieved 
though  the  plaintiff  may  in  some  way  have  contributed  to  the  injury  sus- 
tained." Some  of  the  recent  statutes  dealing  with  employers'  liability  and 
workmen's  compensation  contain  somewhat  similar  provisions  to  the  effect 
that  the  contributory  negligence  of  the  plaintiff  shall  not  operate  as  a  bar  to 
rf>ro-<'erv  but  ^h^H  be  considered  b^-  the  jurv  as  reducine^  tlTC  damages  to  bo 
awarded.  United  States,  Act  of  Congress.  April  22.  1Q08.  Ch.  149.  sec.  3.  25tb 
Statute  at  Larpe.  p.  65;  Kansas.  Act  of  March  14.  1911.  §  46;  Te-xas.  Act  of 
Anril  16,  1913.  §  1. 


1374  SCHUTT  V.  ADAIR. 

accident  to  exercise  such  care  and  diligence  in  looking  and  examin- 
ing the  place  where  he  went  as  would  be  expected  of  an  ordinarily- 
prudent  man  situated  as  plaintiff  was,. and  having  such  knowledge 
of  the  elevator  as  plaintiff  had,  and  that  if  plaintiff'  failed  to  exer- 
cise such  care  and  diligence  he  was  guilty  of  contributory  negligence, 
and  can  not  recover. 

It  is  insisted  that  this  instruction  w^as  erroneous,  inter  alia,  in 
stating  as  a  matter  of  law  that  a  duty  devolved  upon  plaintiff  while 
within  the  warehouse  to  exercise  due  care  for  his  own  safety. 
Though  the  violation  of  a  statutory  duty  may  constitute  negligence 
per  se  and  actionable  if  injury  result  therefrom,  nevertheless,  stat- 
utes imposing  such  duties  are  not  so  construed  as  to  abrogate  the 
ordinary  rules  of  contributory  negligence,  unless  so  worded  as  to 
leave  nO  doubt  that  the  legislature  intended  to  exclude  the  defense. 
20  Am.  &  Eng.  Enc.  (2d  Ed.)  159;  Casivell  v.  Worth,  5  El.  &  Bl. 
849 ;  Hayes  v.  Michigan  Central  R.  Co.,  in  U.  S.  228,  4  Sup.  Ct. 
369,  28  L.  Ed.  410;  Whitcomh  v.  Standard,  153  Ind,  513,  55  N.  E. 
440;  Queen  v.  Dayton,  95  Tenn.  458,  465,  32  S.  W.  460,  30  L.  R. 
A.  82,  49  Am.  St.  935 ;  Hohtm  v.  Chicago,  80  Wis.  299,  50  N.  W. 
99;  Taylor  v.  Carew,  143  Mass.  470,  10  N.  E.  308. 

It  was  not  the  intention  of  the  legislature  in  enacting  this  stat- 
ute to  create  an  absolute  liability,  but  rather  to  impose  a  duty  upon 
persons  operating  warehouses  and  manufacturing  establishments  to 
guard  and  protect  their  employees  from  injury,  the  non-compliance 
with  which  constitutes  negligence  justifying  a  recovery  by  an  in- 
jured servant,  without  further  proof  of  a  failure  to  exercise  that 
degree  of  care  enjoined  by  the  rules  of  the  common  law.  The  gen- 
eral principles  of  the  law  underlying  the  right  of  action  for  personal 
injuries  founded  upon  negligence  remain  the  same,  though  the  proof 
of  negligence  is  simplified  by  showing  merely  a  failure  to  obey  the 
statutory  commands.  Contributory  negligence  will  bar  such  an  ac- 
tion precisely  as  it  bars  such  an  action  at  common  law.  Anderson 
V.  C.  N.  Nelson  Lumber  Co.,  67  Minn.  79,  69  N.  W.  630;  Swenson 
V.  Osgood  &  Blodgett  Mfg.  Co.,  91  Minn.  509,  98  N.  W.  645.^ 


^  So  where  a  statute  requires  the  instalation  of  safety  appliances,  while  the 
weight  of  modern  authority  is  to  the  effect  that  an  employer  does  not  assume 
the  risk  of  injury  from  his  employees'  disobedience  thereof,  see  Narramorc  v. 
Cleveland,  C.  C.  &  St.  L.  R.  Co.,  96  Fed.  298,  post.  Appendix,  he  is  usually 
held  to  be  barred  by  his  contributory  negligence,  Taft,  J.  in  Narramore  v. 
Railroad  and  cases  therein  cited  by  him.  and  Keenan  v.  Edison  Electric  Illu- 
miuatiug  Co.,  159  Mass.  379  (1893).  In  Illinois  in  an  action  for  the  wilful  vio- 
lation of  the  duty  to  protect  miners  by  fencing  shafts,  etc..  created  by  statutes 
carrying  into  effect  the  constitutional  provision,  §  29,  Art.  4,  contributory 
negligence  is  no  defense,  Cartcrville  Coal  Co.  v.  Abbot,  181  111.  495 
(1899),  with  which  compare  Browne  v.  Siegcl-Coopcr  Co.,  191  111.  226 
(1901),  holding  that  the  negligence  of  an  employee  barred  recovery  when 
he  fell  into  an  unguarded  elevator  shaft  required  to  have  iron  doors  un- 
der a  general  ordinance  regulating  the  use  of  all  elevators  for  the  protec- 
tion of  the  public  generally.  The  tendency  of  more  recent  cases  is  to  re- 
quire a  much  less  amount  of  self-protective  precaution  from  employees  using 
or  coming  into  necessarv  contact  with  appliances  lacking  statutory  guards, 
compare  Schlemmvr  v.  Buffalo,  R.  &  P.  R.  Co..  207  Pa.  196  (1903)  with 
Fegley  v.  Lycoming  Rubber  Co.,  231  Pa.  St.  446  (1911). 


LENAHAX  V.  PITTSTON  COAL  CO.  1375 

LENAHAN  v.  TITTSTON  COAL  CO. 

Supreme  Court  of  Pennsylvania,  1907.     218  Pa.  St.  311. 

Mr.  Justice  Elkin.  The  Act  of  June  2,  1891,  P.  L.  176, 
which,  as  its  title  declares,  was  intended  to  protect  the  health  and 
safety  of  persons  employed  in  and  about  the  anthracite  coal  mines 
of  Pennsylvania  and  to  preserve  the  property  connected  therewith, 
provides,  section  eight,  that  *'no  person  under  fifteen  years  of  age 
shall  be  appointed  to  oil  the  machinery  and  no  person  shall  oil  dan- 
gerous parts  of  such  machinery  while  it  is  in  motion."  The  boy, 
Munley,  was  fourteen  years,  four  months  and  three  days  old  at  the 
time  the  accident  occurred.  At  the  trial  the  learned  court  below 
directed  a  compulsory  nonsuit  to  be  entered,  which,  on  motion  made, 
he  refused  tO'  take  off  on  the  ground  that  the  boy  was  guilty  of 
contributory  negligence  in  attempting  to  oil  dangerous  parts  of  the 
machinery  while  in  motion,  which  was  in  violation  of  the  statute, 
and  therefore  negligent.  This  would  be  the  correct  rule  if  the  in- 
jured boy  had  the  right  under  the  law  to  engage  in  the  employment 
which  occasioned  the  injury.  The  learned  trial  judge  took  the  view 
that  the  boy  being  over  fourteen  years  of  age  was  presumed  under 
the  common-law  rule  to  have  sufficient  capacity  to  be  sensible  of 
danger  and  to  have  the  power  to  avoid  it,  and  that  such  presumption 
had  not  been  overcome  by  the  evidence  produced  at  the  trial.  The 
exact  question  raised  by  this  appeal  is  whether  this  common-law 
rule  was  modified  or  changed  by  the  statutory  regulation.  The  in- 
jured boy  was  under  fifteen  years  of  age,  and  if  the  appellee  com- 
pany employed  him  for  the  purpose  of  oiling  machinery  it  did  so 
in  violation  of  the  statute.  Is  it,  therefore,  in  position  to  set  up  in 
this  case  the  rule  which  presumes  a  boy  over  fourteen  to  be  capable 
of  appreciating  danger  so  ss  to  apply  the  rule  of  contributory  negli- 
gence to  his  acts,  when  the  legislature  in  express  terms  provided 
that  an  employer  shall  not  engage  a  person  under  the  age  of  fifteen 
years  to  perform  this  dangerous  work?  After  full  consideration 
we  are  unanimously  of  the  opinion  that  the  legislature,  under  its 
police  power,  could  fix  an  age  limit  below  which  boys  should  not 
be  employed,  and  when  the  age  limit  was  so  fixed,  an  employer  who 
violates  the  act  by  engaging  a  boy  under  the  statutory  age  does  so 
at  his  own  risk,  and  if  the  boy  is  injured  while  engaged  in  the  per- 
formance of  the  prohibited  duties  for  which  he  was  employed,  his 
employer  will  be  liable  in  damages  for  injuries  thus  sustained.  This 
rule  is  founded  on  the  principles  that  when  the  legislature  definitely 
estal)lished  an  age  limit  under  which  children  should  not  be  em- 
ployed, as  it  had  the  power  to  do,  the  intention  was  to  declare  that 
a  child  so  employed,  did  not  have  the  mature  judgment,  experience 


As  to  the  effect  of  the  contributory  negligence  of  a  plaintiff  bitten  by  a 
dog,  when  by  statute  the  person  keeping  it  is  liable  without  notice  of  its  fero- 
cious character,  compare  Quiniby  v.  IVoodbnrv,  63  N.  H.  370  (1885),  with 
Hiissey  v.  King,  83  Maine  568  (1891).  Schultc  v.  Griffith,  103  Iowa  150 
(1897).  Kelley  v.  Killonrey,  81  Conn.  320  (1908),  and  Peck  v.  Williams  24 
R.  I.  583  (1903). 


13/6  PINOZA  V.   NORTHERN  CHAIR  CO. 

and  discretion  necessary  to  engage  in  that  dangerous  kind  of  work. 
A  boy  employed  in  violation  of  the  statute  is  not  chargeable  with 
contributory  negligence  or  with  having  assumed  the  risks  of  em- 
ployment in  such  occupation.  There  can  be  no  question  that  this 
statute  was  intended  as  a  protection  to  the  employees,  and  its  ob- 
ject was  to  prevent  children  under  the  age  of  fifteen  years  from 
being  employed  in  and  around  the  anthracite  coal  mines  in  the  dan- 
gerous kind  of  work  designated  in  the  act,  and  it  should  be  given 
a  construction  to  best  effectuate  the  purpose  of  its  enactment.  This 
exact  question  has  not  been  before  our  courts,  but  it  has  been  passed 
upon  by  the  courts  of  many  other  jurisdictions,  and  so  far  as  we 
are  informed  the  rule  hereinbefore  stated  has  been  uniformly  fol- 
lowed. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded.^ 


PINOZA  z'.  NORTHERN  CHAIR  COMPANY. 

Supreme  Court  of  IVisconsin,  1913.     152  Wis.  473. 

Marshall,  J.  The  statute  claimed  to  have  been  violated  is  as 
follows : 

"No  child  under  the  age  of  sixteen  years  shall  be  employed  in 
adjusting  any  belt  or  in  oiling  or  assisting  in  oiling,  wiping  or  clean- 
ing any  machinery  when  the  same  is  in  motion  or  in  operating  or 
assisting  in  operating  any  circular  or  handsaw,  wood  shaper,  wood 
jointer,  planer,  sandpaper  or  wood  polishing  machine  *  *  '''■  or 
in  any  other  employment  dangerous  to  life  or  limb  *  '•'  *"  Sec. 
1728a,  Stats.  (Laws  of  1909,  ch.  338). 

Any  one  '"who"  shall  violate  "any  of  the  provisions  of  this  act" 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  there- 

"^  Accord:  American  Car  etc.  Co.  v.  Armentraut,  214  111.  509  (1905); 
Strafford  v.  Republic  Iron  etc.  Co.,  238  111.  371  (1909)  ;  Inland  Steel  Co.  v. 
Yedinak,  172  Ind.  423  (1909);  Marino  v.  Lehmaier,  173  N.  Y.  530  (1903), 
but  see  Rahn  v.  Standard  Optical  Co.,  110  App.  Div.  501  (N.  Y.  1906)  ;  Glu- 
cina  V.  Goss  Brick  Co.,  63  Wash.  401  (1911)  ;  Stehle  v.  Jaeger  Automatic 
Machine  Co.,  220  Pa.  St.  617  (1908),  225  Pa.  St.  348  (1909),  where  plaintiff 
was  held  entitled  to  recover  though  injured  while  dealing  with  a  machine 
outside  his  appointed  field  of  duty  and  which  he  had  been  forbidden  to 
touch.  In  Nairn  v.  National  Biscuit  Co.,  120  Mo.  App.  144  (1906),  it  is 
held  that  mere  heedless  inadvertence  is  no  defense.  On  the  other  hand 
it  is  held  in  many  cases  that,  if  the  child  is  in  fact  capable  of  appreciat- 
ing the  danger  of  his  act  he  may  not  recover,  Darsan  v.  Kohlmann,  123 
La.  164  (1909)  ;  Bcrdos  v.  Tremont  etc.  Mills,  209  Mass.  489  (1911)  ;  Perry 
V.  Tozer,  90  Minn.  431  (1903)  ;  Sterling  v.  Union  Carbide  Co.,  142  Mich.  284 
(1905)  ;  Rahn  v.  Standard  Co.,  supra,  while  it  is  held  ir.  Brombcrg  v.  Evans 
Laundry  Co.,  134  Iowa  38  (1907),  that  in  view  of  the  legislative  declara- 
tion of  such  minor's  incompetence,  the  burden  of  proving  capacity  lay 
on  defendant.  In  Norman  v.  Virginia-Pocahontas  Coal  Co.,  68  W.  Va. 
405  (1910),  the  court  held,  though  with  a  strong  dissent,^  that  the  de- 
fendant engaging  boys  under  legal  age  is  liable  for  all  injuries  made 
reasonably  probable  by  their  youthful  heedlessness,  etc.,  but  not  for  injuries 
caused  by  acts  which  they  in  fact  know  are  dangerous ;  see  for  a  somewhat 
similar  idea  Queen  v.  Dayton  Coal  &  Iron  Co.,  95  Tenn.  458  (1895),  and 
Iron  &  Wire  Co.  v.  Green,  108  Tenn.  161  (1901). 


PINOZA  V.   NORTHERN  CHAIR  CO.  13/7 

of  shall  be  fined'  not  less  than  twenty-five  dollars  nor  more  than  one 
hundred  dollars  for  each  offense,"  or  be  imprisoned  "in  the  county 
jail  not  longer  than  thirty  days."  Sec.  1728/2,  Stats.  (Laws  of  1909, 
ch.  338). 

It  must  be  conceded  that  defendant  acted  in  defiance  of  the 
written  law  in  employing  plaintiff'  and  that  if  such  circumstances 
rendered  the  defense  of  contributory  negligence  unavailing,  as  the 
trial  court  decided,  the  judgment  must  be  affirmed. 

The  contention  that  contributory  negligence  has,  uniformly, 
been  held  by  this  court  to  be  a  defense  in  an  action  based  on  negli- 
gence, and  therefore  the  decision  below  is  wrong,  is  beside  the  case, 
it  fails  to  appreciate  that  there  can  be  no  contributory  negligence, 
strictly  so  called,  except  in  cases  of  concurrent  inadvertence,  de- 
nominated ordinary  negligence  or  want  of  ordinary  care.  Bolin  \. 
C,  St.  P.,  M.  &■  6.  R.  Co.,  108  Wis.  333,  84  N.  W.  446;  Havcr- 
lund  V.  C,  St.  P.,  M.  &  R.  Co.,  143  Wis.  415,  128  N.  W.  273 ;  Astin 
V.  C,  M.  &  St.  P.  R.  Co.,  143  Wis.  477,  128  N.  W.  265.  There 
must  be  inadvertence  of  the  defendant  or  there  can  be  no  contribu- 
tory negligence  of  the  plaintiff'.  Where  the  fault  of  the  person  caus- 
ing the  injury  is  characterized  by  advertence,  denominated  in  our 
system,  gross  negligence, — wrong  having  the  element  of  actual  in-  ■ 
tent  to  injure  or  such  disregard  of  consequences  as  to  be  equivalent 
thereto,^  and  so,  called  constructive  intent,- — the  contributory  fault 

^  Knowlton,  C.  J.  in  Banks  v.  Braman,  188  Alass.  367-369,  "The  difference  , 
in  culpability  of  the  defendant,  which  distinguishes  these  different  kinds  pfj   , 
liabihty,"    (for   ordinary   negligence   and   wanton   neghgence)    "is    something    ^ 
more   than   a   mere   difference   in   the   degree   of   inadvertence.      In    one   case 
there  need  be  nothing  more  than  a  lack  of  ordinary  care,  which  causes  an 
injury   to    another.      In   the   other   case   there   is   wilful,    intentional    conduct 
whose  tendency  to  injure  is  known,  or  ought  to  be  known,  accompanied  by  a 
wanton  and   reckless  disregard  of   the  probable  harmful   consequences   from 
which  others  are  likely  to  suffer,  so  that  the  whole  conduct  together,  is  of 
the  nature  of  a  wilful,  intentional  wrong."     It  is  not  necessary  that  the  de- 
fendant  intended   to  injure  the   plaintiff,   Aiken  v.   Holyoke  St.  R.   Co.,    184 
jNIass.  269  (1903).     Compare  Holmes.  J.  in  Pierce  v.  Cunard  S.  S.  Co.,  153 
]\Iass.'  87    (1891),  a  case  where  the  defendant's  conduct  clearly  fell  within 
the  above  definition  of  wanton  negligence. 

For  conduct  held  not  amounting  to  such  wanton  negligence,  see  Lawrence 
V.  Fitchhurg  etc.  R.  Co.,  201  Mass.  489  (1909)  and  Willis  v.  Boston  &  N.  St. 
R.  Co.,  208  Mass.  589  (1911). 

^'See  Knowlton,  C.  J.  in  Aiken  v.  Holyoke  R.  Co.,  184  Mass.  269  (1903). 
p.  271,  quoted  in  Banks  v.  Braman,  188  Mass.  367:  "The  law  is  regardful  of 
human  life  and  personal  safety,  and  if  one  is  grossly  and  wantonly  reckless 
in  exposing  others  to  danger,  it  holds  him  to  have  intended  the  natural  con- 
sequences of  his  act,  and  treats  him  as  guilty  of  a  wilful  and  intentional 
wrong.  It  is  no  defence  to  a  charge  of  manslaughter  for  the  defendant  to 
show  that,  while  grossly  reckless,  he  did  not  actually  intend  to  cause  the 
death  of  his  victim.  In  these  cases  of  personal  injury  there  is  a  constructive 
intention  as  to  the  consequences,  which,  entering  into  the  wilful,  intentional 
act,  the  law  imputes  to  the  offender,  and  in  this  way  a  charge  which  other- 
wise would  be  mere  negligence,  becomes,  by  reason  of  a  reckless  disre- 
gard of  probable  consequences,  a  wilful  wrong.  That  this  constructive  in- 
tention to  do  an  injury  in  such  cases  will  be  imputed  in  the  alisence  of  an 
actual  intent  to  harm  a  particular  person,  is  recognized  as  an  elementary 
principle  in  criminal  law.  It  is  also  recognized  in  civil  actions  for  recklessly 
and  wantonly  injuring  others  by  carelessness." 


1378  RADLEY  Z'.  LONDON  &  N.  W.  R.  CO. 

of  the  person  injured  is  not,  properly,  characterizable  as  contribu- 
tory negligence,  and  the  general  rule  as  to  efficiency  of  such  fault 
to  save'  the  wrongdoer  from  the  consequences  of  his  act  has  no 
application.  True,  it  is  often  said  in  such  cases,  contributory  negli- 
gence is  not  a  defense,  but  logically  there  is  no  such  negligence  pos- 
sible,^ as  the  term  is  ordinarily  understood  in  the  classification  of 
the  degrees  of  negligence  as  maintained  here  almost  from  the  begin- 
ning of  our  system  of  jurisprudence.  Astin  v.  C,  M.  &  St.  P.  R. 
Co.,  143  Wis.  477,  128  N.  W.  265. 

So  it  will  be  seen  that,  it  is  somewhat  of  a  misnomer  to  speak 
of  fault  of  the  plaintiff  in  this  case  as  contributory  negligence. 
Manifestly  there  was  no  negligence  on  the  part  of  appellant,  and 
could  have  been  none,  strictly  speaking,  falling  within  the  class  of 
faults  regarded  as  mere  want  of  ordinary  care  and  dominated  or- 
dinary negligence.  The  fault  was  advertent  in  character.  ^  There 
was  an  actual  or  constructive  intent  to  violate  the  law,  equivalent, 
as  indicated,  to  a  constructive  intent  to  cause  the  consequences  which 
the  l?w  was  designed  to  prevent.* 


SECTION  3. 

The  Defendant's  Ability  to  Avoid  Injury  to  the  Plaintiff  Exposed 

Thereto  by  His  Own  Negligence  ("Last  Clear 

Chance"  Doctrine). 


RADLEY  V.  LONDON  &  NORTH  WESTERN  RAILWAY  CO. 

Court  of  Exchequer,  1874.     L.  R.  187.3-4,  9  Ex.  71. 

Court  of  Exchequer,  1875.    L.  R.  1874-5.  10  Ex.  100. 

House  of  Lords,  1876.    L.  R.  1875-6,  1  App.  Cas.  754. 

This  was  an  action  brought  to  recover  damages  from  the  de- 
fendants for  injury  done  to  a  bridge  upon  the  plaintiffs'  siding, 
under  circumstances  which  are  fully  stated  in  the  judgment.     The 

''See  McClellan,  J.,  in  Ga.  Pac.  R.  Co.  v.  Lee,  92  Ala.  265  (1890),  p.  270- 
271,  and  see  for  the  view  that  such  wilful  and  wanton  negligence  is  a  cause 
so  independent  of  previous  conduct  of  the  plaintiff,  *  *  *  that  (the  lat- 
ter) can  not  be  considered  a  directly  contributing  cause  of  the  injury,  Knowl- 
ton,  C.  J.  in  Banks  v.  Braman,  188  Mass.  367  (1905),  p.  370.  "The  ground  on 
which  it  is  held  that,  when  an  act  of  the  defendant  shows  an  injury  inflicted 
in  this  way,  the  plaintiff  need  introduce  no  affirmative  evidence  of  due  care, 
that  this  previous  conduct  can  not  be  considered  a  directly  contributing  cause 
of  the  injury,  and,  in  reference  to  such  an  injury,  the  plaintiff,  without  in- 
troducing evidence,  is  assumed  to  be  in  a  position  to  claim  his  rights  and  to 
have  compensation.  So  far  as  the  cause  of  his  injury  is  concerned,  he  is  in 
the  position  of  one  who  exercises  due  care." 

*In  Pizso  v.  Wiemann,  149  Wis.  235  (1912),  an  action  under  a  statute 
making  it  a  criminal  offense  to  sell  toy  pistols,  it  was  held  that  the  negligence 
of  the  bov  in  its  use  did  not  defeat  his  father's  risht  to  recover  for  his 
death  "The  nature  of  the  wrongful  act  was  such  that  contributing  negli- 
gence on  the  part  of  the  last  purchaser  is  immaterial  to  either  criminal  or 
civil  liability  of  the  seller's."— Marshall,  J.,  p.  239. 


RADLF.Y  v.  LONDON  &  N.  \V.  R.  CO.  1379 

cause  was  tried  before  Brett,  J.,  at  the  Liverpool  Summer  Assizes, 
1873.  The  defendants  contended  that  the  evidence  showed  contribu- 
tory negligence  in  the  plaintiffs,  and  this  question  being  left  to  the 
jury  by  the  learned  judge,  they  found  for  the  defendants.  A  rule 
having  been  obtained  for  a  new  trial  on  the  ground  that  the  learned 
judge  misdirected  the  jury  in  telling  them  that  there  was  evidence 
of  contributory  negligence  in  the  plaintiffs. 

Bramwell,  B.  This  is  a  case  of  very  great  complexity,  not  so 
much  in  the  facts  as  in  the  considerations  to  which  they  give  rise. 
So  much  so  that  we  have  thought  it  desirable  to  put  our  opinion  in 
writing.  The  material  facts  are  as  follows : — The  plaintiffs  are  col- 
liery owners,  who  have  sidings  out  of  and  on  one  of  the  defendants' 
lines ;  over  these  sidings  is  a  bridge  belonging  to  the  plaintiffs,  with 
a  headway  of  eight  feet.  It  has  been  the  course  of  business  be- 
tween the  plaintiffs  and  the  defendants  for  the  defendants  to  take 
from  these  sidings  the  plaintiffs'  wagons  loaded  with  coals  and  de- 
liver or  leave  them  at  their  destination ;  also  to  collect  the  plaintiffs'* 
wagons  when  empty,  and  bring  them  to  the  sidings,  and  there  leave 
them.  When  the  wagons  were  so  left  on  the  sidings,  the  plaintiffs 
dealt  with  them  as  they  saw  fit,  i.  e.,  took  them  to  the  pit  to  be 
loaded  in  such  order  and  at  such  times  as  they  pleased,  or  took  them 
to  their  workshops  if  they  needed  repair.  On  a  certain  Saturday, 
after  working  hours,  when  the  men  were  gone  and  the  plaintiffs 
could  only  move  them  as  they  might  on  a  Sunday,  i.  e.,  by  some 
special  engagement  of  workmen,  the  defendants  brought  and  left  on 
one  of  the  plaintiffs'  sidings  some  empty  wagons  of  the  plaintiffs', 
and  a  wagon,  empty  except  that  it  had  on  it  a  wagon  of  the  plain- 
tiffs' which  had  broken  down  and  could  not  travel,  and  had  to  be 
brought  in  this  way  to  the  plaintiffs.  The  wagon  so  loaded  was, 
with  its  load,  eleven  feet  high,  and  therefore  could  not  pass  under 
the  bridge.  It  remained  where  so  left.  On  the  next  Sunday  night, 
after  dark,  the  defendants  brought  in  a  very  long  train  of  the  plain- 
tiffs' empty  wagons,  and  pushed  it  on  the  siding  where  this  wagon, 
loaded  with  the  disabled  wagon,  was.  The  wagon  was  pushed  as 
far  as  the  bridge.  Had  it  been  empty  it  would  have  passed  under- 
neath, and  probably  the  defendants  had  often  pushed  wagons  ii.  this 
way  under  the  bridge,  though  there  was  evidence  to  show  that  they 
had  been  requested  not  to  push  things  on  the  siding  beyond  a  pub- 
lic highway,  which  was  some  distance  before  getting  to  the  bridge 
in  the  direction  in  which  the  defendants  brought  the  train  of  empty 
wagons.  This  is,  perhaps,  of  no  moment.  But  the  wagon  so  loaded 
coming  to  the  bridge  and  being  unable  to  pass  underneath  it,  the 
train  stopped,  and  those  who  had  charge  of  it,  without  looking  to 
ascertain  the  cause  of  the  stoppage,  gave  momentum  to  the  engine 
to  such  an  extent  that  the  wagon  with  its  load  knocked  the  bridge 
down.     For  this  the  action  was  brought. 

It  is  needless  to  say  that  there  was  evidence  of  negligence  in 
the  defendants,  but  the  learned  judge  left  it  to  the  jury  to  say 
whether,  and  the  jury  did  say  that,  there  was  contributory  negli- 
gence in  the  plaintiffs,  and  found  their  verdict  for  the  defendants 


1380  RADLEY  V.  LONDON  &  N.  W.  R.  CO. 

on  that  ground.  We  have  to  say  whether  the  learned  judge  was 
right  in  the  way  in  which  he  dealt  with  this  question  of  contributory 
negligence. 

The  plaintiffs  contended,  first,  that  there  was  no  evidence  of 
contributory  negligence.  The  way  the  defendants  put  it  was  as  fol- 
lows :  They  said  tlie  plaintiff's  knew,  or  ought  to  have  known,  that 
the  loaded  wagon  had  been  brought  and  left  at  the  place  where  it 
was  so  left ;  they  knew  it  would  not  pass  under  the  bridge ;  they 
knew  that  the  defendants  would,  or  might  bring  empty  wagons  on 
the  Sunday,  and,  to  make  room  for  what  they  brought,  w^ould,  or 
might,  push  forward  whatever  they  found  on  the  siding,  as  they  had 
done  before ;  that  therefore  the  plaintiff's  ought  to  have  moved  the 
loaded  wagon,  or  taken  out  the  broken  one,  or  warned  the  defend- 
ants that  it  was  there.  The  plaintiffs  said,  in  answer  to  this,  that, 
assuming  they  knew  the  wagon  was  there  with  the  load,  so  did  the 
defendants ;  that  the  defendants  knew  also  the  height  of  the  bridge, 
and  that  the  wagon  with  its  load  w^ould  not  pass  under  it ;  that  the 
defendants  knew  that  working  hours  were  over  when  they  brought 
it,  and  that  practically  the  plaintiff's  could  not  move  or  unload  it  till 
Monday ;  and  they  said  they  had  a  right  to  suppose  that  the  defend- 
ants would  not  be  so  negligent,  under  these  circumstances,  as  to 
drive  this  loaded  wagon  at  the  bridge,  under  which  it  could  not  pass, 
and  which  it  would  knock  down  if  it  pushed  against  it  with  suffi- 
cient force,  the  more  especially  as  there  was  another  unoccupied 
siding  on  which  the  empty  wagons  brought  on  the  Sunday  might 
have  been  put ;  that  in  truth  the  alleged  negligence  in  the  plaintiffs 
was,  not  foreseeing  and  guarding  against  the  negligence  of  the  de- 
fendants ;  that  even  if  they  themselves  had  placed  the  loaded  wagon 
there,  they  had  no  right  to  anticipate  that  the  defendants  would 
be  so  negligent  as  to  put  any  wagon  on  the  siding  without  seeing 
what  was  there,  and  to  push  with  such  force  as  they  did  when  they 
found  an  obstruction. 

We  think  this  reasoning  correct,  and,  consequently,  that  there 
was  no  evidence  of  contributory  negligence  for  the  jury.  Suppose 
the  defendants  had  brought  the  loaded  wagon  on  Sunday  night,  and 
pushed  as  they  did,  then  there  would  clearly  have  been  no  contribu- 
tory negligence ;  but  how  does  that  differ  from  the  present  case,  un- 
less it  is  supposed  there  was  some  duty  in  the  plaintiffs  to  move  the 
loaded  wagon  on  the  Saturday,  or  to  give  some  notice  ?^ 

The  plaintiffs  further  contended,  what  perhaps  is  much  the  same 
thing  differently  put,  that,  according  to  Daznes  v.  Mann,  10  M.  & 
W.  546,  assuming  there  was  negligence  on  their  part,  yet,  if  the  de- 
fendants could  have  avoided  doing  the  mischief  by  reasonable  care, 
they  were  bound  to  do  so  ;  and  the  plaintiffs  objected  to  the  learned 
judge's  summing-up,  that  this  had  not  been  left  to  the  jury.  This 
also  seems  well  founded.     There  must,  therefore,  be  a  new  trial. 

The  defendants  took  an  appeal  to  the  Exchequer  Chamber. 


^  Compare  the  opinion  of  Taft,  J.,  in  Louisville  &  N.  R.  Co.  v.  East 
Tenn.  R.  Co.,  60  Fed.  993  (1894),  especially  pp.  996-997,  and  Pa.  R.  Co.  v. 
iVhitc.  88  Pa.  2,27  (1879). 


RADLEY  Z'.  LONDON  &  X.  W.  R.  CO.  I381 

Blackburn,  J.-  In  this  case  the  rule  in  the  Court  below  for 
?  new  trial  was  made  absolute  on  two  grounds,  the  principal  one 
being  that  the  Court  thought  that  there  was  no  evidence  of  contribu- 
tory negligence,  by  which  I  understand  any  neglect  of  duty  or  con- 
duct on  the  part  of  the  plaintilts  sufficient  to  disentitle  them  to  re- 
cover in  this  action ;  the  second,  that,  assuming  that_  there  was  any 
such  evidence,  the  case  was  not  properly  left  to  the  jury.  The  ma- 
jority of  the  Court,  I  think,  are  of  opinion  that  on  neither  ground 
was  the  court  below  right. 

I  will  first  state  the  question,  which  is  really  the  important  one, 
whether  there  was  evidence  which,  if  properly  left  to  the  jury,  would 
take  from  the  plaintiffs  the  right  to  recover,  assuming  that  the  de- 
fendants were  guilty  of  negligence.  I  believe  that  there  is  no  dis- 
pute, and  that  for  many  years  there  has  been  no  conflict  of  authority 
as  to  what  really  is  the  law  upon  the  subject.  I  think  that  all  the 
cases  uniformly  agree  in  this,  that  though  the  plaintiff',  or  the  per- 
son who  complains  of  negligence,  may  himself  have  been  guilty  of 
negligence,  and  may  have  put  his  property  in  some  place  where  it 
is  exposed  to  danger,  though  leaving  it  there  was  negligence  on 
his  part,  yet  that  does  not  disentitle  him  to  recover  for  the  conse- 
quences of  negligence  on  the  part  of  other  persons,  which  has  in- 
jured him  or  his  property.  A  man  is  bound,  when  he  puts  himself 
in  a  place  where  he  knows  other  persons  are  coming,  and  are  in  the 
habit  of  coming,  not  only  for  his  own  safety,  but  for  that  of  his 
neighbors,  to  take  reasonable  care  of  himself  and  of  his  property; 
but,  whether  he  does  this  or  not,  it  does  not  relieve  anybody  else  who 
comes  there  from  the  duty  of  also  taking  reasonable  care. 

The  question  was  asked,  would  a  reasonable  man,  under  the 
circumstances,  have  left  that  high  wagon  there  (because  it  was  its 
height  which  made  it  dangerous),  standing,  as  it  did,  for  thirty- 
six  hours  without  removing  it?  It  is  true  that  it  was  after  work- 
ing hours,  and  after  the  workmen  had  left  the  colliery,  but  would 
a  prudent  man  have  removed  it  from  the  siding?  The  question  was 
clearly  one  for  the  jury,  and  the  jury  have  rightly  answered  it  by 
finding  that  there  was  negligence.  But  then  it  does  not  follow  that 
the  defendants  might  not  be  liable.  The  strongest  evidence  of  their 
negligence  is  this,  when  they  were  pushing  the  wagons  into  the 
siding  and  felt  a  stoppage,  which,  as  we  know,  was  the  high  wagon 
coming  against  the  bridge,  they  concluded  that  the  bridge  was  high 
enough  to  pass  under,  took  back  the  engine  and  then  brought  it 
with  such  an  impetus,  that  the  trucks  were  shoved  forward  against 
the  bridge  and  brought  it  down.  This  was  certainly  evidence  for 
the  jury  of  negligence  on  the  part  of  the  defendants,  and  if  they 
thought  that  this  negligence,  notwithstanding  the  fact  that  the  high 
wagon  had  been  left  there,  was  the  proximate  cause  of  the  accident, 
the  defendants  would  have  been  responsible.  But  that  question  was 
substantially  left  to  the  jury.  It  was  pointed  out  in  terms  sufficient 
to  bring  the  question  before  them,  and  there  was  no  negligence  on 
the  part  of  the  defendants  in  what  they  did,  unless  thev  knew  the 

"  Mellor,  Lush,  Brett  and  Archibald.  JJ.,  concurring,  Denman,  J.,  dissent- 
ing. 


1382  RADLEY  V.  LONDON  &  N.  \V.  R.  CO. 

high  wagon  was  there.  For  if  not,  there  is  nothing  on  their  part 
but  what  takes  place  in  the  ordinary  course  of  business.  If  that 
is  so  I  venture  to  say  it  is  not  a  question  about  words,  but  there 
.was  a  state  of  things  which  would  disentitle  the  plaintiffs  to  recover, 
because  I  think  it  would  appear  that  not  merely  the  negligence  of 
the  plaintiffs  in  leaving  this  high  wagon  standing  there  was  a  causa 
sine  qua  non,  a  cause  without  which  the  thing  would  not  have  hap- 
pened, for  it  clearly  would  not  have  happened  unless  the  high 
wagon  had  been  •  standing  there,  but  also  that  if  the  mis- 
chief would  not  have  happened  but  for  that  negligence  on  the 
part  of  the  plaintiffs,  and  all  that  was  imputed  to  the  defend- 
ants was  dependent  upon  this,  whether  or  not  they  ought  to  have 
supposed  that  the  high  wagon  was  there,  then,  if  the  defendants 
had  no  reason  to  believe  that  it  was  there,  they  were  guilty  of  no 
negligence  at  all,^  and  consequently  the  plaintiff's  negligence  in  leav- 
ing it  there  was  the  proximate  cause  of  the  accident,  and  not  merely 
the  causa  sine  qua  non.  The  distinction  between  this  and  Davics 
V.  Mann.,  10  M.  &.  W.  546^  and  that  class  of  cases,  is  that  though 
the  donkey,  which  was  left  there,  was  the  causa  sine  qua  non,  yet 
the  defendant  was  guilty  of  negligence  in  driving  furiously  and  in 
a  way  which  would  have  been  negligent  even  if  there  had  been  no 
donkey  there,  because  he  had  every  reason  to  expect  that  other  peo- 
ple would  come  there,  and  even  if  an  unfettered  donkey  had  been 
there,  although  it  might  have  got  out  of  his  way,  yet  it  would  have 
been  liable  to  be  run  over,  and  therefore  the  defendant  was  guilty  of 
negligence.  Then  the  question  comes  to  be,  could  the  plaintiffs  avoid 
the  consequences  of  the  defendants'  negligence?  This  being  so,  I 
can  not  agree  with  the  Court  below,  that  there  was  no  evidence  of 
such  a  state  of  things  as  to  disentitle  the  plaintiffs  to  recover. 

The  plaintiff's  thereupon  appealed  to  the  House  of  Lords. 

Lord  Penzance.  The  first  question  on  the  appeal  is,  whether 
the  Court  of  Exchequer  Chamber  was  right  in  holding  that  there 
was  any  evidence,  proper  to  be  submitted  to  the  jury,  tending  to 
the  conclusion  that  the  plaintiffs  themselves  had  been  guilty  of  some 
negligence  in  the  matter,  and  that  such  negligence  had  contributed 
to  produce  the  accident  and  injury  of  which  they  complained. 

The  decision  of  the  Exchequer  Chamber  upon  this  matter  ought, 
I  think,  to  be  upheld. 

The  remaining  question  is  whether  the  learned  Judge  properly 
directed  the  jury  in  point  of  law.    The  law  in  these  cases  of  negii- 


'In  The  Steam  Dredge  No.  i,  134  Fed.  161  (C.  C.  A.  1st  Circ.  1904), 
it  was  held  reversing  the  decision  of  Hale  D.  in  122  Fed.  679  (1903)  that, 
as  the  admiralty  rule  of  divided  damages  was  less  stringent  than  the  com- 
mon law,  the  rule  denying  recovery  to  a  plaintiff  guilty  of  contributory 
negligence  rule  in  the  principal  case,  which  he  described  as  "ameliatory" 
and  introduced  for  the  purpose  of  "avoiding  results  which  otherwise  might 
shock  the  common  sense  of  justice,"  has  no  application  to  admiralty  cases, 
and  see  also  the  cases  cited  in  his  opinion  :  but  compare  Cayzer  v.  Carron, 
L.  R.  9  App.  Cas.  873  (1884),  where  the  decision  of  the  House  of  Lords  can 
only  be  supported  as  an  application  of  the  rule  in  the  principal  case. 


IL\DLEY  V.  LONDON  &  N.  W.  R.  CO.  I383 

gence  is,  as  was  said  in  the  Court  of  Exchequer  Chamber,  perfectly 
well  settled  and  beyond  dispute. 

The  first  proposition  is  a  general  one,  to  this  efifect,  that  the 
plaintiff  in  an  action  for  negligence  can  not  succeed  if  it  is  found 
by  the  jury  that  he  has  himself  been  guilty  of  any  negligence  or 
want  of  ordinary  care  which  contributed  to  cause  the  accident. 

But  there  is  another  proposition  equally  well  established,^  and 
it  is  a  qualification  upon  the  first,  namely,  that  though  the  plaintiff 
may  have  been  guilty  of  negligence,  and  although  that  negligence 
may,  in  fact,  have  contributed  to  the  accident,  yet  if  the  defendant 
could  in  the  result,  by  the  exercise  of  ordinary  care  and  diligence, 
have  avoided  the  mischief  which  happened,  the  plaintiff's  negligence 
will  not  excuse  him. 

This  proposition,  as  one  of  law,  can  not  be  questioned.  It  was 
decided  in  the  case  of  Davies  v.  Mann,  lo  M.  &  W.  546,  sup- 
ported in  that  of  Tuff  v.  Warman,  5  C.  B.  (N.  S.)  573;  27  L.  J. 
C.  P.  322,  and  other  cases,  and  has  been  universally  applied  in  cases 
of  this  character  without  question. 

The  only  point  for  consideration,  therefore,  is  whether  the 
learned  Judge  properly  presented  it  to  the  mind  of  the  jury. 

It  seems  impossible  to  say  that  he  did  so.  At  the  beginning 
of  his  summing-up  he  laid  down  the  following  as  the  propositions 
of  law  which  governed  the  case:  It  is  for  the  plaintiffs  to  satisfy 
you  that  this  accident  happened  through  the  negligence  of  the  de- 
fendants' servants,  and  as  between  them  and  the  defendants,  that 
it  was  solely  through  the  negligence  of  the  defendants'  servants. 
They  must  satisfy  you  that  it  was  solely  by  the  negligence  of 
the  defendants'  servants,  or,  in  other  words,  that  there  was  no  negli- 
gence on  the  part  of  their  serv'ants  contributing  to  the  accident ;  so 
that,  if  you  think  that  both  sides  were  negligent,  so  as  to  contribute 
to  the  accident,  then  the  plaintiffs  can  not  recover. 

This  language  is  perfectly  plain  and  perfectly  unqualified,  and 
in  case  the  jurors  thought  there  was  any  contributory  negligence 
on  the  part  of  the  plaintiff's'  servants,  they  could  not,  without  dis- 
regarding the  direction  of  the  learned  Judge,  have  found  in  the 
plaintiffs'  favor,  however  negligent  the  defendants  had  been,  or 
however  easily  they  might  with  ordinary  care  have  avoided  any  ac- 
cident at  all. 

The  learned  Judge  then  went  on  to  describe  to  the  jury  what 
it  was  that  might  properly  be  considered  to  constitute  negligence, 
first  in  the  coriduct  of  the  defendants,  and  then  in  the  conduct  of 
the  plaintiff's ;  and  having  done  this,  he  again  reverted  to  the  gov- 
erning propositions  of  law,  as  follows :  "There  seems  to  be  two 
views.  It  is  for  you  to  say  entirely  as  to  both  points.  But  the 
law  is  this,  the  plaintiff  must  have  satisfied  you  that  this  happened 
by  the  negligence  of  the  defendants'  servants,  and  without  any  con- 
tributory negligence  of  their  own ;  in  other  words,  that  it  w;as  solely 
by  the  negligence  of  the  defendants'  servants.  If  you  think  it  was, 
then  your  verdict  will  be  for  the  plaintiffs.  If  you  think  it  was  not 
solely  bv  the  negligence  of  the  defendants'  servants,  your  verdict 
must  be  for  the  defendants." 


1384  RADLEV  f.  LONDON  &  N.  W.  R.  CO. 

This  again,  is  entirely  without  quahfication,  and  the  undoubted 
meaning  of  it  is,  that  if  there  was  any  contributory  neghgence  on 
the  part  of  the  plaintiffs,  they  could  in  no  case  recover.  Such  a 
statement  of  law  is  contrary  to  the  doctrine  established  in  the  case 
of  Davies  v.  Mann,  10  M.  &  W.  546,  and  the  other  cases  above  al- 
luded to,  and  in  no  part  of  the  summing-up  is  that  doctrine  anywhere 
to  be  found.  The  learned  counsel  were  unable  to  point  out  any 
passage  addressed  to  it. 

It  is  true  that  in  part  of  his  summing-up  the  learned  Judge 
pointed  attention  to  the  conduct  of  the  engine-driver,  in  determin- 
ing to  force  his  way  by  violence  through  the  obstruction,  as  fit  to 
be  considered  by  the  jury  on  the  question  of  negligence ;  but  he 
failed  to  add  that  if  they  thought  the  engine-driver  might  at  this 
stage  of  the  matter  by  ordinary  care  have  avoided  all  accident, 
any  previous  negligence  of  the  plaintiffs  would  not  preclude  them 
from  recovering. 

In  point  of  fact  the  evidence  was  strong  to  show  that  this  was 
the  immediate  cause  of  the  accident,  and  the  jury  might  well  think 
that  ordinary  care  and  diligence  on  the  part  of  the  engine-driver 
would,  notwithstanding  any  previous  negligence  of  the  plaintiffs 
in  leaving  the  loaded-up  truck  on  the  line,  have  made  the  accident 
impossible.  This  substantial  defect  of  the  learned  Judge's  charge 
is  that  that  question  was  never  put  to  the  jury. 

On  this  point,  therefore,  I  propose  to  move  that  your  Lord- 
ships should  reverse  the  decision  of  the  Exchequer  Chamber,  and 
direct  a  new  trial. 

Lord  Blackburn.  My  Lords,  I  agree  entirely  with  the  noble 
Lord  who  has  first  spoken  as  to  what  were  the  proper  Questions  for 
the  jury  in  this  case,  and  that  they  were  not  decided  by  the  jury. 
I  am  inclined  to  think  that  the  learned  judge  did  in  part  of  his 
summing-up  sufficiently  ask  the  proper  questions,  had  they  been 
aijswered,  but  unfortunately  he  failed  to  have  an  answer  from  the 
jury  to  those  questions,  it  appearing  by  the  case  that  the  only  finding 
was  as  to  the  plaintiff's  negligence. 

I  agree,  therefore,  in  the  result  that  there  should  be  a  new  trial.* 

Judgment  of  the  Court  of  Exchequer  Chamber  rez'ersed. 

Judgment  of  the  Court  of  Exchequer  restored,  and  a  nezv  trial 
ordered,  with  costs. 


*  Accord:  where  the  defendant  actually  knew  of  the  helpless  peril  into 
which  the  plaintiff's  negligence  had  brought  him  or  had  notice  of  facts  suffi- 
cient to  indicate  that  the  plaintiff  or  some  one  else  was  in  such  peril.  Chicago, 
Indianapolis  &  Louisville  R.  Co.  v.  Prif chard,  168  Ind.  399  (1906);  Cay::cr 
V.  Carron,  L.  R.  9  App.  Cases  873  (1884),  libel  in  admiralty  for  colHsion  be- 
tween two  vessels;  Austin  v.  N.  J.  Steamboat  Co.,  43  X.  Y.  75  (1870),  sim- 
ilar facts;  Inland  Coasting  Co.  v.  Folsom,  139  X.  S.  551  (1890),  p.  558: 
Costello  v.  Third  Ave.  R.  Co..  161  X.  Y.  317  (1900),  and  Smith  v.  Connecticut 
R.  etc.  Co.,  80  Conn.  268  (1907)  ;  Louisville  oV  N.  R.  Co.  v.  Harrod.  155  Ky. 
155  (1913);  Valin  v.  Milwaukee  &  N  R.  Co..  82  Wis.  1  (1892);  but  see 
Bolin  V.  Chicago,  St.  P..  M.  &  O.  R.  Co.,  108  Wis.  333  (1901),  and  Trsch  v. 
Milwaukee  Electric  R.  &■  Light  Co..  108  Wis.  593  (1901):  Red  ford  v.  Sf^o- 
kane  St.  R.  Co.,  15  Wash.  419  (1896);  Eastburn  v.  Norfolk  &  IV.  R.  Co., 


,n 


1^     I  IOWA   CKNT.    R.    CO.   Z'.   WALKKR.  I38: 

IOWA  CENT.  R.  CO.  et  al.  v.  WALKER. 

Circuit  Court  of  Appeals,  Eighth  Circuit,  1913.     203  fed.  Rep.  685. 

Wm,  H.  Munger^  District  Judge.  This  action  was  brought  by 
the  defendant  in  error,  who  will  be  designated  as  plaintiff,  against 
plaintiff  in  error,  who  will  be  designated  as  defendant,  to  recover 
for  an  injury  sustained  by  being  struck  by  the  engine  of  defend- 
ant's train.  It  appears  that  plaintiff  was  in  the  employ  of  defendant 
as  telegraph  operator  at  XewSharon.  Iowa,  and  also  assisted  the 
station  agent  in  and  about  hanJTing  the  baggage,  receiving  the  same 
from  trains,  and  delivering  the  same  to  trains.  The  defendant's 
railroad  track  ran  practically  north  and  south  on  the  east  side  of 
the  depot ;  there  being  a  platfornn5erween  the  depot  antl  the  tracks. 
A  freight  train  from  the  north  was  about  two  hours  late.  Plain- 
tiff inquired  of  the  dispatcher  where  the  train  was,  and  was  informed 
that  it  had  not  yet  reached  Sears boro,  a  station  about  eight  miles 
north  of  New  Sharon.  Plaintiff  then  went  out  to  a  baggage  truck 
standing  close  to  the  edge  of  the  platform  next  to  the  track  to  the 
northeast  of  the  depot,  took  a  hand  grip  off,  handed  it  to  a  lady, 
had  a  little  conversation  with  a  gentleman,  returned  to  the  truck, 
pushed  it  along  on  the  platform  to  the  south,  with  a  view  of  taking 
the  truck  to  the  west  side  of  the  depot,  where  the  train  of  another 
road  was  soon  expected.  There  was  snow  on  the  platform,  varying 
in  depth,  according  to  the  evidence,  from  three  to  eight  inches,  the 
snow  had  been  tramped  down  some,  and  a  path  had  been  shoveled 
down  to  the  edge  of  the  platform.  Plaintiff,  to  avoid  the  snow, 
wheeled  the  truck  close  to  the  east  edge  of  this  platform.  Just  about 
as  he  reached  the  southeast  corner,  and  while  turning  or  about  to 
turn  the  truck  to  the  west,  he  was  struck  by  this  freight  train  com- 
ing on  the  defendant's  track  ^rom  the  north,  and  sustained  the  in- 
juries complained  of.  He  alleged  in  his  petition  negligence  of  the 
defendant  in  permitting  the  accumulation  of  snow  upon  the  plat- 
form, the  running  of  the  train  at  a  negligent  rate  of  speed,  failing 
to  give  any  signal  by  blowing  the  whistle  or  ringing  the  bell,  and 
further  alleged  negligence  upon  the  part  of  the  defendant,  in  that, 
after  the  engineer  discovered  him  in  a  place  of  peril,  by  the  exer- 
cise of  ordinary  care,  he  could  have  avoided  the  injury. 

34  W.  Va.  681   (1891),  and  see  cases  cited  in  note  to  lozca  Ccufral  R.  Co.  v. 
Walker,  post,  p.  1387. 

It  is  immaterial  whether  the  defendant's  suhsequent  conduct  is  active  or 
passive,  he  is  as  fully  liahle  where,  with  knowledge  of  the  plaintiff's  peril,  he 
fails  to  take  steps  to  stop  the  vehicle  which  he  is  driving  so  as  to  prevent  a 
collision,  as  in  Tanner  v.  Louisville  &  X.  R.  Co.,  60  Ala.  621  (1877),  or  to 
take  any  steps  apparently  necessary  to  avoid  doing  injury  to  the  plaintiff, 
Denver  &  Berkeley  Park  Transit  Co.  v.  Divyer,  20  Colo.  132  (1894)  ;  Louis- 
ville cte.R.  Co.  v.  Harrod,  155  Ky.  155  (1913),  as  where  he  is  guilty  of 
positive  injurious  action,  such  as  the  improper  navigation  after  knowledge 
that  the  plaintiff's  hoat  is  in  a  position  of  danger,  as  in  Austin  v.  ^V.  /.  5.  .S\ 
Co.,  43  N.  Y.  75  (1870),  and  Cayzer  v.  Carron.  L.  R.  9  App.  Cases  873  (18S4), 
or  the  act  of  a  motorman  in  accelerating  the  speed  of  his  car  after  ohser\  - 
ing  that  the  plaintiff  is  negligently  attemptine  to  cross  the  tracks,  as  in 
Costcllo  V.  Third  Ave.  R.  Co.,  161  N.  Y.  317  (1900),  and  Smith  v.  Connecticut 
R.  Co.,  80  Conn.  268  (1907). 


1386  IOWA  CENT.   R.   CO.  V.   WALKER.  I      '^  j 

The  trial  court,  in  its  charge  to  the  jury,  ehminated  all  ques- 
tions of  negligence  excepting  the  latter,  saying  to  the  jury: 

"But,  as  I  have  already  said  to  you,  down  to  the  time  he  was 
within  the  danger  limit,  could  he,  by  the  exercise  of  diligence,  have 
•been  seen  by  the  engineer  to  be  inside  of  the  danger  limit?  Then, 
from  that  point,  had  this  engineer  exercised  care  and  freedom  from 
negligence,  as  he  ought  to  do,  could  he  then  have  averted  the  in- 
jury? If  not,  then  your  verdict  will  be  in  favor  of  the  company, 
If  he,  the  engineer,  could  have  averted  the  injury  after  he  saw  the 
liazardous  position  in  which  the  plaintiff  had  placed  himself,  then 
'yoiTwill  find  a  verdict  for  the  plaintiff." 
- — ^This  instruction  was  faulty,  in  that  it  submitted  to  the  jury 
the  question  as  to  whether  or  not,  in  the  exercise  of  diligence  on 
part  of  the  engineer,  he  could  have  discovered  that  the  plaintiff  was 
inside  the  danger  limit.  The  instruction  in  that  respect  was  ex- 
cepted to  by  defendant. 

In  Denver  City  Tramway  Co.  v.  Cohh,  164  Fed.  41,  90  C.  C. 
A.  z|59.  Justice  Van  Devanter,  then  Judge  Van  Devanter,  speaking 
with  regard  to  the  ex;ception  which  permits  plaintiff  to  recover,  not- 
withstanding his  own  contributory  negligence,  said : 

"The  exception  does  not  apply  where  the  plaintiff's  negligence 
or  position  of  danger  is  not  discovered  by  the  defendant  in  time  to 
avoid  the  injury." 

In  Hart  v.  Northern  Pac.  Ry.  Co.,  196  Fed.  180,  116  C.  C.  A. 
12,  this  court  said : 

"It  presupposes  or  concedes  the  existence  of  contributory  neg- 
ligence, and  seeks  to  avoid  its  consequence  by  subsequent  occur- 
rences. If  it  were  true  that  Starr  was  in  a  state  of  actual  peril, 
that  the  defendant  had  actual  knowledge  of  that  peril,  and  after 
that  knowledge  vvas  acquired  failed  to  exercise  ordinary  care  to 
prevent  injuring  him,  these  facts  might  create  a  cause  of  action, 
or  might  excuse  the  contributory  negligence  which  brought  Starr 
into  his  position  of  peril." 

Numerous  other  authorities  might  be  cited  to  the  same  effect, 
to  wit,  that  the  defendant's  liability  under  what  is  known  as  the 
last  chance  doctrine  is  only  where,  after  actual  discovery  of  the 
plaintiff's  perilous  position  the  injury  could  be  avoided  by  the  ex- 
ercise of  ordinary  care  and  diligence. 

There  was  a  conflict  in  the  evidence  as  to  whether  the  plain- 
tiff, while  he  was  wheeling  the  truck  on  the  platform  to  the  south, 
was  so  near  the  track  that  he  would  be  struck  by  the  overhang  of 
the  engine,  or  whether  the  first  time  that  he  placed  himself  in  po- 
sition to  be  struck  by  the  overhang  of  the  engine  was  as  he  swung 
the  truck  to  turn  to  the  west.  That,  however,  was  a  proper  ques- 
tion for  the  jury.  Assuming,  however,  that  the  engineer  saw  the 
plaintiff  moving  so  near  the  edge  of  the  platform  that  he  might  be 
struck  by  the  overhang  of  the  engine,  he  had  a  right  to  assume  that 
the  plaintiff  would  step  to  one  side  out  of  the  danger  line,  and  the 
engineer  was  not  called  upon  to  act  until  he  discovered  that  the 
plaintiff  probably  would  not  step  to  one  side.     Little  Rock  Ry.  & 


TEAKLE   V.    SAN   PEDRO,    ETC.,   R.    CO.  I387 

Elec.  Co.  V.  Billings,  173  Fed.  903,  98  C.  C.  A.  467,  31  L.  R.  A. 
(N.  S.)  1031,  19  Ann.  Cas.  1173 ;  St.  Louis  &  S.  F.  R.  Co.  v.  Sum- 
mers, 173  Fed.  358,  97  C.  C.  A.  328;  ///.  Cent.  Ry.  Co.  v.  Ackerman, 
144  Fed.  959,  76  C.  C.  A.  13;  Lake  Shore  &  Michigan  Southern 
Ry.  Co.  V.  Miller,  25  Mich.  274;  Southern  Railzvay  Co.  v.  Bailey, 
no  Va.  833,  67  S.  E.  365,  27  L.  R.  A.  (N.  S.)  379;  Beem,  Adm'r, 
V.  Tama  &  Toledo  Elec.  &  Ry.  Co.,  104  Iowa,  563,  73  N.  W.  1045. 

The  evidence,  however,  is  undisputed  that,  as  soon  as  the  en- 
gineer operating  the  train  discovered  that  plaintiff  was  in  a  position 
of  danger  he  apphed  the  emergency  brake,  and  stopped  the  train  as 
soon  as  possible,  the  train  coming  to  a  stop  within  about  100  feet. 

At  the  close  of  all  the  evidence,  defendant  requested  the  court 
to  instruct  a  verdict  for  the  defendant,  which  was  overruled,  to 
which  an  exception  w^as  taken.  As  the  evidence  was  indisputable 
and  conclusive  that,  as  soon  as  the  engineer  knew  that  the  plain- 
tiff was  in  a  situation  of  danger,  he  immediately  did  all  that  could 
be  done  to  avoid  the  accident  by  applying  the  emergency  brake,  the 
requested  instruction  should  have  been  given. 

The  judgment  is  reversed,  with  directions  to  grant  a  new  trial. ^ 


\h 


TEAKLE  V.  SAN  PEDRO,  L.  A.  &  S.  L.  R.  CO. 

Supreme  Court  of  Utah,  1907.     32  Utah  276. 

Straup,  J.  This  court,  in  harmony  with  the  great  weight  of 
authority,  seems  to  be  committed  to  the  rule  (when  the  injured  or 
deceased  person  was  not  a  trespasser)  that  the  defendant's  act  of 
negligence  will  be  regarded  as*  the  sole  proximate  cause  of  the  in- 
jury, not  only  when  relating  to  a  breach  of  duty  occurring  after 
the  consequences  of  contributory  negligence  have  been  discovered, 

^Accord:  Richmond  etc.  R.  Co.  v.  Didcoueit,  1  App.  Cas.  (D.  C.)  482 
(1893)  ;  Cullen  v.  B.  &  P.  R.  Co.,  8  App.  Cas.  (D.  C.)  69  (1896)  ;  Krenzer 
v  P.,  C,  C.  &  St.  L.  R.  Co.,  151  Ind.  587  (1898),  but  see  Indianapolis  Trac. 
&c.  Co  V.  Kidd,  167  Ind.  402  (1906)  ;  Indianapolis  and  Traction  Co.  v. 
Croly.post,-^.\AQ2>;  Gilbert  v.  Erie  R.  Co.,  97  Fed.  747  (1899);  Herbert 
V.  So.  Pac.  R.  Co.,  121  Cal.  227  (1898);  Bourrett  v.  Chicago  &  N.  W. 
R.  Co.,  152  Iowa  579  (1911);  Purcell  v.  Chicago  &  N.  IV.  R.  Co., 
117  Iowa  667  (1902);  Anderson  v.  Minn.,  St.  P.  &  S.  M.  R.  Co..  103 
Minn.  224  (1908)  ;  Chicago,  B.  &  Q.  R.  Co.  v.  Lille\',  93  N.  W.  1012  (Nebr. 
1903).  but  see  Chicago,  B.  &  Q.  R.  Co.  v.  JVvvtore,  40  Nebr.  645  (1894) 
and  Omaha  St.  R.  Co.  v.  Martin,  48  Nebr.  65  (1896);  Steivart  v.  Portland 
R\.  etc.  Co.,  58  Ore.  2>77  (1911),  semhle:  Smith  v.  So.  Pac.  R.  Co.,  58 
Ore.  22  (1911),  semble,  and  Scholl  v.  Belcher,  63  Ore.  310  (1912),  where 
the  court  refused  to  decide  whether  knowledge  was  essential.  See,  also. 
Bragg  v.  Central  New  England  R.  Co.,  152  App.  Div.  444  (_N.  Y.  1912). 
where  it  was  held  that  where  the  negligence  of  each  consisted  in  the  failure 
to  discover  the  negligence  of  the  other  there  could  be  no  recovery;  a  flag- 
man sent  out  by  a  train,  fell  asleep  by  the  side  of  the  track,  and  not  being 
seen  by  the  engineer,  was  there  run  over  by  his  train. 

It  is  clearly  not  necessary  that  the  defendant  should  know  of  the  particular 
danger  of  the' particular  plaintiff,  it  is  enough  that  he  is  warned  of  danger 
ahead,  whether  by  the  warnings  of  others  or  by  his  senses,  and  fails  to  take 
steps  to  bring  his  actions  under  complete  control  so  that  he  may  avoid  the 


1388  TEAKLE   v.   SAN    PEDRO,    ETC.,   R.    CO. 

but  also  when,  in  the  exercise  of  ordinary  care,  such  consequences 
could  have  been  discovered,  if  a  breach  of  duty  intervened  or  con- 

"  tmuecl'aller-Jiie-commission  of  the  contributory  negligence.     Wliile 
thg^reach  of  duty  must  be  subsequent  to  the  commission  of  the 

.    contriButory  negligence,  yet  such  breach  of  duty  may  be  before,  as 
well  as  after,  the  discovery  of  the  peril. 

There  is  much  reason  for  the  distinction  that  the  railroad  com- 
pany should  not  be  held  liable  in  case  of  an  actual  or  conscious 
trespasser  until  his  position  of  danger  is  discovered,  and  should 
be  held  liable  in  case  of  one  not  a  trespasser  exposed  to  peril 
through  negligence,  not  only  after  the  consequences  of  such  negli- 
gence have  been  discovered,  bvit  which  ordinarily  could  have  been 
discovered,  if  there  was  a  breach  of  duty  continuing  or  intervening 
after  the  commission  of  the  contributory  negligence.^     In  the  one 

injury,  Chicago,  I.  &  L.  R.  Co.  v.  Pritchard,  168  Ind.  399  (1906)  and  cases 
cited  therein,  engineer  ignored  signals  to  stop  and  ran  down  plaintiff  who  was 
pinned  down  by  material  fallen  from  freight  car.  As  to  the  liability  of  a 
defendant  who  sees  on  or  near  his  path  an  object,  which  from  its  appear- 
ance may  or  may  not  be  a  helpless  human  being,  see  LoiiisviUe,  H.  &  St.  L. 
R.  Co.  v.  Hathaway,  121  Ky.  666  (1905),  2  L.  R.  A.  (N.  S.)  498,  with  val- 
uable note. 

^Accord:  Tuff  v.  Warman,  2  C.  B.  (N.  S.)  740  (18^"),,  5  C.  B.  (N.  S.) 
573  (1858)  ;  Kansas  Citv,  Ft.  S.  &  M.  R.  Co.  v.  Cook,  66  Fed.  115  (1895)  : 
Texas  &  P.  R.  Co.  v.  Nolan,  62  Fed.  552  (1894)  ;  Baltimore  &  Ohio  R.  Co. 
V.  Anderson,  85  Fed.  413  (1898);  Birmingham  R.  Co.  v.  Brantlv,  141  Ala. 
614  (1904)  ;  Denver  &  R.  G.  R.  Co.  v.  Buffchr,  30  Colo.  27  (1902)  ;  Elliott 
V.  Nezv  York  &c.  R.  Co..  84  Conn.  444  (1911);  Louisville  &  N.  R.  Co.  v. 
Earl,  94  Ky.  368  (1893)  ;  Ozvensboro  Citv  R.  Co.  v.  Hill,  21  Ky  L.  1638  (1900)  ; 
Flynn  V.  Louisville  Ry.,  110  Ky.  662  (1901);  Baltimore  &  Ohio  R.  Co.  v. 
State  to  use  of  Trainor,  2ii  Md.  542  (1870)  ;  Baltimore  Consolidated  R.  Co. 
V.  Rifcoimts,  89  Md.  338  (1899);  Battishill  v.  Humphrevs,  64  Mich.  494 
(1887)  ;  Cooper  v.  Lake  Shore  &  M.  S.  R.  Co.,  66  Mich.  261  (1887)  ;  Rapp 
V.  St.  Louis  Transit  Co.,  190  Mo.  144  (1905)  ;  Kolb  v.  St.  Louis  Transit  Co.. 
102  Mo.  App.  143  (1903)  ;  Bunting  v.  Cent.  Pac.  R.  Co.,  16  Nev.  277  (1881)  ; 
Lake  Shore  &  M.  S.  R.  Co.  v.  Schadc,  15  Ohio  C.  C.  424  (1895),  57  Ohio 
St.  650  (1897)  ;  Drovim  v.  Northern  Ohio  Trac.  Co.,  76  Ohio  St.  234  (1907)  ; 
Bullock  V.  Wilmington  &  IV.  R.  Co.,  105  N.  Car.  180  (1890);  Bogan  v. 
Carolina  Cent.  R.  Co.,  129  N.  Car.  154  (1901)  ;H.&T.  C.  R.  Co.  v.  Svmpkins, 
54  Tex.  615  (1881);  Baltimore  &  Ohio  R.  Co.  v.  Few,  94  Va.  82  (1896). 
See  Costello  v.  Third  Ave.  R.  Co.,  161  N.  Y.  317  (1900)  with  which  compare 
Rider  v.  Svracuse  Rapid  Transit  Co.,  171  N.  Y.  139  (1902),  Green  v.  Eric 
R.  Co.,  11  Hun  333  (N.  Y.  1877),  and  also  see  Bodie  v.  Charleston  &  W.  C. 
R.  Co.,  61  S.  Car.  468  (1901). 

A  passenger  seeking  to  alight  from  a  railroad  or  street  railway  car  and 
carelessly  going  upon  the  step  while  the  car  is  in  motion,  may  recover  if 
the  conductor  or  motorman  caused  the  speed  to  be  suddenly  increased,  so 
jolting  her  from  her  negligently  perilous  position,  Washington  etc.  R.  Co. 
V.  Harmon,  147  U.  S.  571  (1893)  ;  Peoples  Pass.  R.  Co.  v.  Green,  56  Md.  84 
(1880);  Baltimore  Consolidated  R.  Co.  v.  Armstrong,  92  Md.  554  (1901): 
Central  of  New  Jersev  R.  Co.  v.  P'an  Horn,  38  N.  J.  L.  133  (18753  ;  Cawfield 
V.  Asheville  R.  Co..  Ill  N.  Car.  597  (1892);  see  also  Omaha  St.  R-  Co.  v. 
Martin,  48  Nebr.  65   (1896). 

So  where  a  street  railway  car  is  discharging  passengers,  those  in  charge 
of  another  car,  approaching  the  point  on  parallel  tracks,  are  bound  to  have 
the  latter  in  such  control  that  they  can  avoid  striking  those  passengers  of 
the  first  car  who,  in  their  effort  to  reach  the  opposite  pavement,  may  walk 
behind  their  own  car  upon  such  parallel  track.  Louisville  R.  Co.  V.  Hudgins. 
124  Ky.  79  (1906);  Rapp  v.  St.  Louis  Transit  Co.,  190  Mo.  144  (1905): 
contra,  Buzby  v.  Philadelphia   Traction  Co.,  126  Pa.   St.  559   (1889).     This 


TEAKLE  v.   SAN    PEDRO,   ETC.,    R.    CO.  1 389 

instance  the  train  operatives  were  not  called  upon  to  expect  or 
anticipate  the  trespass  or  the  presence  of  persons,  and  hence  owed 
no  duty  of  lookout  or  of  giving  warnings.  In  such  case  no  duty 
was  imposed  on  them  until  the  trespasser  was  discovered  in  a  posi- 
tion of  peril.  In  such  case  the  liahility  of  the  company  must  solely 
depend  upon  a  breach  of  duty  subsequent  to  the  discovery.-  If, 
on  the  other  hand,  through  a  long  usage  or  custom  the  public  has 
made  a  thoroughfare  of  the  track  in  a  populous  city  or  thickly  set- 
tled community  though  not  with  any  express  authority  but  under 
circumstances  of  an  implied  license,  the  train  operatives  are  required 
to  reasonably,  expect  and  anticipate  the  probable  presence  of  per- 
sons on  or  near  the  track  at  such  place,  and  there  is  consequently 
imposed  on  the  train  operatives  a  duty  towards  such  persons  of  a 
reasonable  lookout.^  When,  therefore,  it  is  said  that  the  railwav 
company  is  liable  in  such  case  for  an  omission  of  duty  on  the  part 


prjnciple  is  ^Iso  applied  where  passengers  alighting  at  a  station  from  a  steam 
railway  train  must,  in  order  to  reach  the  platform,  cross  the  intervening 
railroad  track,  IVariier  v.  B.  &  O.  R.  Co.,  168  U.  S.  339  (1897).  In  such  case 
it  is  held  in  Pennsylvania  R.  Co.  v.  JVhite,  88  Pa.  327  (1879),  that  the  plain- 
tiff is  entitled  to  rely  upon  the  company  performing  its  duty  not  to  run  trains 
upon  such  intervening  track  and  is  not  guilty  of  negligence  in  failing  to  stop, 
look  or  listen  before  crossing  it. 

^  In  many  jurisdictions  the  railroads  are  held  bound  to  keep  a  lookout 
for  trespassing  cattle  and  to  be  liable  notwithstanding  the  negligence  of 
the  owner  in  allowing  his  cattle  to  stray,  if  their  peril  could  have  been 
observed  and  the  collision  avoided,  O'Keefe  v.  Chicago  R.  I.  &  P.  R. 
Co.,  32  Iowa  467  (1871)  ;  Masscr  v.  Chicago  R.  I.  &  P.  R.  Co.,  68  Iowa 
602  (1886)  ;  Tennis  v.  Inter  State  Consolidated  Rapid  Transit  R.  Co., 
45  Kans.  503  (1891);  Halev  v.  Kansas  Citv  M.  &  B.  R.  Co.,  113  Ala.  640 
(1896);  St.  Louis,  I.  M.  cS-  Sy  R.  Co.  v.  Mondav,  49  Ark.  257  (1887); 
L.  &  N.  R.  Co.  v.  Howard,  82  Ky.  212  (1884)  ;  Russell  v.  Maine  Cent.  R.  Co., 
100  Maine  406  (1905);  Rickctts  v.  B.  &  O.  R.  Co..  69  Md.  494  (1888); 
Locke  V.  First  Div.  St.  Paul  R.  Co.,  15  Minn.  350  (1870)  ;  Egan  v.  Montana 
Cent.  R.  Co.,  24  Mont.  569  (1901)  ;  Terrv  v.  New  York  Cent.  R.  Co.,  22  Barb. 
574  (N.  Y.  1855)  ;  Ward  v.  So.  Pac.  R.  Co.,  25  Ore.  433  (1894)  ;  Seaboard  & 
R.  Co.  v.  Jovner.  92  Va.  354  (1895)  ;  Newport  News  &  M.  V.  Co.  v.  Howe, 
S2  Fed.  362  (1892)  ;  Gulf  C.  &  S.  F.  R.  Co.  v.  Bolton,  2  Ind.  Ter.  463,  51  S. 
W.  1085  (1899). 

"  So  it  is  held  in  many  jurisdictions  that  the  railroads  are  bound  to  keep 
a  lookout  to  observe  the  presence  of  trespassing  cattle  upon  their  tracks  and 
are  bound  to  keep  a  lookout  for  human  beings  there  trespassing,  at  least  at 
those  points  where  the  public  is  accustomed  to  use  the  track  for  crossing  or 
to  walk  upon  or  by  the  side  of  it,  Isbell  v.  A^.  Y.  &  N.  H.  R.  Co.,  27  Conn. 
393  (1858);  Gorman  v.  Pac.  R.  Co.,  26  Mo.  441  (1858);  Chicago  &  N.  II'. 
R.  Co.  v.  Barrie,  55  111.  226  (1870);  Kerwhacker  v.  Cleveland,  C.  &  C.  R. 
Co.,  3  Ohio  St.  172  (1854),  trespassing  cattle;  accord,  L.  R.  &  F.  S.  R.  Co. 
V.  Finlev,  37  Ark.  562  (1881),  but  see  Memphis  &  L.  R.  Co.  v.  Kerr,  52  Ark. 
162  (1889)  ;  Chesapeake  &  O.  R.  Co.  v.  Keelin,  22  Ky.  L.  R.  1942  (1901)  ; 
Pickett  V.  IVilmington  &  W.  R.  Co.,  117  N.  Car.  616  (1895)  ;  Bogan  v.  Car- 
olina Cent.  R.  Co.,  129  N.  Car.  154  (1901)  ;  H.  &  T.  R.  Co.  v.  Svmpkins,  54 
Tex.  615  (1881)  ;  St.  Louis  &  S.  W.  R.  Co.  v.  Shiflet,  98  Tex.  326  (1904)  ; 
Murphy  v.  Wabash  R.  Co.,  228  Mo.  56  (1910),  trespassing  persons.  See 
note  to  East  Kentucky  R.  Co.  v.  Powell,  ante. 

While  a  railroad  is  not  bound  to  keep  a  lookout  to  see  whether  horses, 
which  may  be  standing  on  the  higliway  near  the  tracks,  are  frightened  by 
the  approach  of  the  train,  those  in  control  of  the  train  must,  if  the  fright  of 
such  a  horse  is  discovered,  take  steps  lo  prevent  harm  resulting  therefrom, 
Louisville  &  N.  R.  Co.  v.  Harrod,  155  Ky.  155  (1913). 


1390  FRENCH  V.  GRAND  TRUNK  R.  CO.. 

of  the  train  operatives,  not  only  after  the  consequences  of  the  in- 
jured or  deceased's  neghgence  have  been  discovered,  but  also  for 
such  an  omission  of  duty,  as  had  it  been  reasonably  performed, 
such  consequences  could  ordinarily  have  been  discovered,  it  neces- 
sarily implies  the  existence  of  a  duty  owing  by  the  train  operatives 
toward  the  injured  or  deceased  person  before  as  well  as  after  the 
commission  of  the  contributory  negligence.  In  other  words,  before 
a  person  inflicting  an  injury  can  be  charged  with  an  omission  of 
duty  in  failing  to  discover  a  perilous  situation  of  another,  there 
jxuisL-be  a  duty  owing  from  him  to  the  injured  or  deceased  person, 
which,  had  it  been  performed  with  reasonable  care,  would  have  dis- 
closed  to  him  the  exposed  situation  of  the  person  receiving  the  in- 


VvK       FRENCH  V.  THE  GRAND  TRUNK  RAILWAY  CO 

'V  Supreme  Court  of  Vermont,  1904.     76  Ft.  441. 

Start,  J.  The  action  is  for  the  recovery  of  damages  alleged 
to  have  accrued  to  the  plaintiff  by  reason  of  being  struck  by  an 
engine  while  attempting  to  cross  the  defendant's  railroad  track. 
The  defendant  requested  the  court  to  instruct  the  jury,  "that  on  all 
the  evidence  in  the  case  the  plaintiff  is  not  entitled  to  recover." 
This  is,  in  effect,  a  motion  for  a  verdict,  and  sufficiently  states  the 
ground  of  the  motion ;  and,  by  excepting  to  the  refusal  of  the  court 
to  comply  with  the  request,  the  defendant  has  reserved  for  the  con- 
sideration of  this  Court  the  question  of  whether,  upon  the  most 
favorable  view  for  the  plaintiff'  of  all  the  evidence,  he  was  entitled 
to  recover. 


^The  defendant's  train  was  being  backed  over  a  part  of  its  tracks 
which  the  public  were  accustomed  to  use  as  a  crossing.  The  brakeman 
who  was  keeping  a  lookout  on  the  front  car  saw  the  plaintiff  trying  to 
cross  the  track  and  called  to  him  and  as  soon  as  the  train  struck  him  sig- 
nalled to  the  engineer  to  stop  the  train,  but  the  engineer  was  not  watching 
for  the  brakeman's  signal,  so  made  no  effort  to  stop.  The  plaintiff  was 
thrown  under  the  train,  which  was  180  feet  long,  and  was  not  seriously 
hurt  until  struck  and  killed  by  the  fire  box  of  the  locomotive. 

The  court  held  that  it  was  error  to  exclude  evidence  that  the  train  could 
have  been  stopped  within  twenty  feet,  since,  though  the  plaintiff's  failure  to 
look  out  for  the  approach  of  the  train  was  negligence  concurring  with  that 
of  the  defendant  to  produce  the  original  collision,  so  that  he  could  not  have 
recovered  for  injuries  then  received;  his  negligence  was  spent  when  struck 
and  rendered  powerless  to  help  himself,  and  the  evidence  tended  to  show 
that  had  the  engineer  performed  the  duty  owing  to  the  plaintiff  as  one  of  the 
public  to  be  on  the  alert  when  approaching  this  crossing,  he  could,  by  stop- 
ping the  train,  have  avoided  killing  him.  Accord:  Metropolitan  St.  R.  Co. 
V.  Arnold,  67  Kans.  260  (1903),  where  the  defendants'  motorman  had  he 
been  looking  out,  could  have  observed  the  plaintiff  who  negligently  tried 
to  cross  in  front  of  the  car  and  after  being  struck,  clung,  practically  unhurt, 
to  the  fender  while  the  car  proceeded  75  feet  farther  and  then  was  drawn 
under  the  wheels  and  killed,  with  which  compare  Dyerson  v.  R.  Co.,  note  to 
Frewh  v.  R.  Co.,  post;  contra,  Bourrett  v.  Chicago  &  N.  W.  R.  Co.,  152 
Iowa  579  (1911),  reversing  on  rehearing  Bourrett  v.  Chicago  &  .V.  W.  R.  Co.. 
121  N.  W.  380  (Iowa  1909),  where  a  boy  running  across  a  track  after  a  ball 
was  struck  by  a  train  backing  without  a  lookout  and  was  dragged  for  ?■  con- 
siderable distance  before  losing  his  hold  and  falling  under  the  wheels. 


FRENCH  v.  GRAND  TRUNK  R.  CO.  I39I 

The  plaintiff  gave  evidence  tending  to  show,  that  he  walked 
from  the  public  crossing  through  the  railroad  yard  of  the  defend- 
ant, along  the  side  of  a  lot  of  box  cars  some  two  hundred  and  thirty- 
feet,  and  then  passed  the  end  of  the  line  of  box  cars ;  that  he  looked 
to  the  right  and  left,  went  right  along  and  attempted  to  cross  the 
defendant's  main  line  and,  in  so  doing,  was  struck  by  the  defend- 
ant's express  train,  coming  from  the  west ;  that,  as  he  passed  the 
end  of  the  box  cars,  he  could  see  toward  the  west  a  distance  of 
the  length  of  two  or  three  cars ;  and  that  he  knew  it  was  about  time 
for  the  express  to  arrive  and  that  it  was  dangerous  to  be  on  the  track. 
The  actual  measurements  of  the  surveyor,  which  were  disputed  only 
by  estimates,  from  the  position  of  a  man  stepping  over  the  fiorth 
rail,  show  that  a  person  could  see  one  hundred  and  eighty-eight  feet 
along  the  north  rail,  and  two  hundred  and  twenty-three  feet  along 
the  south  rail.  The  train  made  a  good  deal  of  noise,  and,  upon  the 
shout  of  warning  from  by-standers,  the  plaintiff  did  not  quicken  his 
pace  in  any  way,  but  looked  up,  not  in  the  direction  of  the  approach- 
ing train,  but  in  the  direction  of  those  who  called  to  him ;  and,  at 
the  time  he  was  struck,  he  was  stepping  over  the  last  rail — had  one 
foot  over. 

Upon  these  facts  the  plaintiff  was  not  entitled  to  recover.  There 
is  no  view  of  the  evidence  that  relieves  him  from  the  charge  of  con- 
tributory negligence.  He  was  in  the  possession  of  all  his  mental 
and  physical  faculties.  He  knew  the  express  train  was  due.  He 
was  struck  as  he  was  stepping  over  the  last  rail.  One  step  would 
have  brought  him  to  a  place  of  safety.  Assuming  that  he  could 
see  along  the  track  over  which  the  train  was  approaching  for  a 
distance  of  only  the  length  of  two  or  three  cars,  as  testified  by  him, 
if  he  had  had  a  regard  for  liis  own  safety  and  looked  and  listened 
as  he  was  crossing  the  track,  he  would  have  seen  or  heard  the  train, 
quickened  his  pace  and  reached  a  place  of  safety.  If  he  had  looked 
or  listened  before  stepping  upon  the  track,  he  would  have  heard  or 
seen  the  train ;  and,  if  mindful  of  his  safety,  he  would  have 
stopped  and  avoided  the  collision.  If  he  had  quickened  his  pace 
when  his  attention  was  called  to  the  approaching  train,  he  could 
have  saved  himself.  He  was  unencumbered  and  capable  of  easily 
hastening  or  checking  his  movements ;  and.  if  he  had  looked  when 
he  was  in  the  middle  of  the  track,  he  could  have  seen  the  engine 
in  season  to  have  stepped  clear  of  danger.  He  could  have  seen 
the  danger  and  avoided  it  at  a  time  when  it  was  too  late  for  the 
defendant's  servants  to  stop  the  train  and  avoid  a  collision.  There 
was  no  time  when  the  defendant's  servants  could  have  stopped  the 
train  and  avoided  the  injury,  in  which  the  plaintiff  could  not  have 
avoided  being  injured  by  a  vigilant  use  of  his  eyes,  ears  and  physi- 
cal strength.  It  was  his  duty  to  make  a  vigilant  use  of  these  fac- 
ulties up  to  the  last  moment  when  it  was  possible  for  him  to  do 
so.  If  he  did  not  see  or  hear  the  train,  if  he  did  not  heed  the 
warning  that  was  given  him,  it  was  because  he  was  not  mindful  of 
his  safety,  when  he  was  in  a  place  that  he  knew  was  dangerous.  It 
was  because  he  was  careless,  and  that  carelessness  continued  until 


1392  FRENCH  V.  GRAND  TRUNK  R.  CO. 

he  was  injured.  His  negligence  was  not  a  precedent  negligence 
He  exposed  himself  to  danger  that  was  the  beginning  and  not  the 
end  of  his  negligence,  and  his  negligence  was  the  proximate  cause 
of  the  injury. 

The  plaintiff  relies  upon  the  case  of  IVilley  v.  The  Boston  & 
'Maine  R.  R.  Co.,  72  Vt.  120,  47  Atl.  398.  It  is  true,  that,  by  the 
rule  there  broadly  and  without  qualification  stated,  the  defendant 
would  be  liable,  if,  when  it  became  apparent  that  the  plaintiff  was 
going  upon  the  track,  its  servants  did  riot  do  what  they  could  to 
avoid  injuring  him,  notwithstanding  he  was  negligent;  but  this  is 
not  the  true  rule,  or  rather  is  not  all  there  is  to  the  rule.  It  is 
true,  that,  when  a  traveler  has  reached  a  point  where  he  can  not 
help  himself,  can  not  extricate  himself,  and  vigilance  on  his  part 
will  not  avert  the  injury,  his  negligence  in  reaching  that  position 
becomes  the  condition  and  not  the  proximate  cause  of  the  injury, 
and  will  not  preclude  a  recovery ;  but  it  is  equally  true,  that,  if  a 
traveler,  when  he  reaches  the  point  of  collision,  is  in  a  situation  to 
help  himself,  and  by  a  vigilant  use  of  his  eyes,  ears  and  physical 
strength  to  extricate  himself  and  avoid  injury,  his  negligence  at 
that  point  will  prevent^  a  recovery,  notwithstanding  the  fact  that  the 
trammen  could  have  stopped  the  train  in  season  to  have  avoided 
Jnjuring  him.  In  such  a  case,  the  negligence  of  the  plaintiff  is  con- 
current with  the  negligence  of  the  defendant,  and  the  negligence  of 
each  is  operative  at  the  time  of  the  accident.  When  negligence  is 
concurrent  and  operative  at  the  time  of  the  collision  and  contributes 
to  it, 'there  can  be  no  recovery. 
Judgment  reversed,  and  cause  remanded.^ 

^Accord-  Fraaer  v.  South  &  North  Alabama  R.  Co.,  81  Ala.  185  (1886)  ; 
Hot  Springs  Street  R.  Co.  v.  Johnson,  64  Ark.  420  (1897);  Everett  v. 
Los  Angeles  Consol.  Elec.  R.  Co.,  115  Cal.  105  (1896);  Green  v. 
Los  Angeles  Terminal  Co.,  143  Cal.  31  (1904)  ;  Dyerson  v.  Union  Pac.  R.  Co.. 
74  Kans.  528  (1906);  Robards  v.  Indianapolis  St.  R.  Co.,  32  Ind.  App.  297 
(1904),  but  see  Indianapolis  Trac.  &  Terminal  Co.  v.  Kidd,  167  Ind.  402 
(1906),  and  Indianapolis  Trac.  Co.  V.  Croly,  post;  Butler  v.  Rockland  T.  &  C. 
St  R  Co  99  Maine  149  (1904)  ;  Hammers  v.  Colo.  etc.  R.  R.,  128  La.  648 
(1911)  •  Drown  v.  Northern  Ohio  Trac.  Co.,  76  Ohio  St.  234  (1907)  ;  Smith  v. 
Norfolk  &  S.  R.  Co..  114  N.  Car.  728  (1894)  ;  Upton  v.  S.  Carolina  &  G.  E. 
R  Co  128  N  Car.  173  (1901)  ;  Richmond  Pass.  etc.  Co.  v.  Gordon,  102  Va. 
498  (i904)  •  Vizacchero  v.  Rhode  Island  Co..  26  R.  I.  392  (1904)  ;  Gilbert  v. 
Erie  R  Co.  97  Fed.  747  (1899)  ;  Northern  Pac.  R.  Co.  v.  Jones,  144  Fed.  47 
(1906)  ;  Southern  R.  Co.  v.  Bailey,  110  Va.  833  (1910).  Many  of  these  cases 
are  complicated  by  the  fact  that  the  injury  is  due  to  a  collision  with  a  plain- 
tiff wrongfully  walking  on  the  defendants'  right  of  way,  if  a  railroid  ;  or, 
if  a  street  railway,  walking,  riding  or  driving  on  its  tracks,  where  the  pub- 
lic are  held  bound  to  make  way  for  the  cars  and  where,  therefore,  the  en- 
gineers and  motormen  are  held  justified  in  assuming  that  the  plaintiff  will 
leave  the  place  of  peril  and  so  is  not  bound  to  anticipate  injury  to  him  until 
he  knows  of  his  inability  to  do  so  or  his  fixed  purpose  to  remain,  Norfolk 
c'-r  Western  R.  Co.  v.  Deans  Adm..  107  Va.  505  (1907)  ;  Neal  v.  Carolina  Cent. 
R.  Co.,  126  N.  Car.  634  (1900).  So,  too,  an  engineer  or  motorman  seeing  a 
man  in  apparent  possession  of  his  faculties  approaching  the  track  is  en- 
titled to  assume  that  he  will  not  attempt  to  cross  if  the  car  is  in  plain  sight. 
Backus  V.   Norfolk   e-r  Atlantic   Terminal  Co..  112  Va.  292    (1911). 

In  Maine  and  Michigan  a  street  railway  is  held  liable  to  a  person  in- 
jured by  being  struck  from  behind  while  driving  along  the  tracks  or  seated 
in  a  wagon  standing  near  the  tracks,  Atwood  v.  Bangor,  O.  &  O.  T.  R.  Co., 


ABBIE  WARNER  V.   PEOPLES'   ST.   R.   CO.  1393 

ABBIE  WARNER  v.  PEOPLES'  ST.  RAILWAY  CO. 

Supreme  Court  of  Pennsykania,  1891.     141  Pa.  615. 

On  July  2,  1 888,  Abbie  Warner,  by  her  next  friend,  George 
Warner,  bro'ught  trespass  against  the  Peoples'  Street  Railway  Com- 
pany of  Luzerne  county,  incorporated  by  the  act  of  March  23,  1865, 
P.  L.  (1866)   1 199.     Issue. 

At  the  trial,  on  April  14,  1889,  testimony  was  submitted  to 
siiow  that  the  defendant's  road,  upon  which  cars  drawn  by  horses 
are  used,  runs  between  Scranton  and  Dunmore  along  one  side  of 
the  public  highway,  the  other  side  being  generally  used  as  a  car- 
riage and  foot-way;  that  on  March  16,  1888,  a  severe  snow  storm 
occurred,  and  a  drift  had  formed  along  the  car  track  near  Scranton, 
from  two  feet  deep  in  some  places,  to  two  feet  and  a  half  in  others, 
and  extending  a  distance  of  about  one-half  a  usual  city  block ;  that 
on  March  17th,  the  railway  company  had  shoveled  out  a  way  along 
its  track  through  the  drift,  not  more  than  wide  enough  for  the  pas- 
sage of  its  cars;  that,  in  the  afternoon  of  that  day,  the  plaintiff, 
about  eighteen  years  of  age,  passing  from  Scranton  towards  Dun- 
more,  approached  the  cut  through  the  drift,  to  enter  it  along  the 
street  car  track  as  the  better  way  for  walking. 

The  plaintifif  testified  that  before  she  entered  the  cut  she  looked 
back  and  could  see  no  car  approaching ;  but,  on  the  part  of  the  de- 
fendant, there  was  testimony  that  a  car  could  have  been  seen  for 
a  distance  of  from  a  quarter  to  half  a  mile  from  the  point  from 
which  the  plaintiff  said  she  had  looked.  The  plaintiff  testified,  fur- 
ther, that  shortly  after  she  entered  the  cut  she  was  overtaken  by 
a  car,  driven  very  rapidly,  when  she  stepped  off  the  track  against 
the  bank  of  snow ;  that  the  horses  and  front  end  of  the  car  passed 
her,  but  she  was  struck  by  the  rear  end,  thrown  beneath  the  wheels, 
and  injured.  On  the  part  of  the  defendant  there  was  testimony 
that  the  car  approached  the  cut,  with  bells  on  the  horses,  slowly  up 
an  ascending  grade,  until  at  or  near  the  mouth  of  the  cut  where 
there  was  a  switch,  and  that  the  driver  was  watching  for  a  broken 
rail  at  the  switch,  and  did  not  see  the  plaintiff  till  the  horses  reached 
the  point  where  she  had  stepped  aside. 

Mr.  Justice  Mitchell.  The  place  of  the  accident  was  m  the 
public  road,  where  both  parties  had  a  right  to  be,  and  where  each, 
therefore,  was  bound  to  be  on  the  lookout  for  the  other:  Schmidt 
V.  McGill,  120  Pa.  405.  But  the  right  of  the  defendant's  cars  was 
superior.  '  Thev  were  confined  to  the  track,  and  on  that  they  had 


91  Maine  399  (1898);  Fickctt  v.  Lewiston,  A.  &  W .  St.  R.  Co.,  110  Maine 
i67mU)  Bedell  v.  Detroit,  Y.  &  A.  A.  R.  Co..  131  Mich.  668  (1902): 
~Montgo»ierv  v.  Lansing  City  Elec.  R.  Co.,  103  Mich.  46  (1894),  thouRh  not 
to  one  injured  while  attempting  to  cross  such  tracks  without  first  lookmg 
for  the  cars,  Fritz  v.  Detroit  Citizens  St.  R.  Co.,  105  ^lich.  50  (1895).  even 
thouffh  the  motorman  saw  that  the  plaintiff  was  negligently  ignorant  of  tne 
peril' into  which  he  was  running,  Butler  v.  Rockland  T.  &  C.  Street  K.  to.,  W 
Maine  149  (1904). 


1394  TROW  V.  VERMONT  CENTRAL  R.  CO. 

the  right  of  way,  to  which  the  use  by  other  parties,  on  foot  or  other- 
wise, was  of  necessity  subordinate.  The  plaintiff,  on  the  other  hand, 
could  use  the  whole  road,  and  which  part  of  it  she  took  was  merely 
a  matter  of  convenience.  That  defendant  in  clearing  its  track  from 
snow  for  the  passage  of  its  cars  had  made  it  also  more  convenient 
■for  plaintiff  to  walk  on,  could  not  be  turned  to  its  disadvantage, 
or  enlarge  the  plaintiff's  rights  over  that  part  of  the  public  road. 
They  were  still  subordinate  to  defendant's  right  of  way :  Jatho  v. 
Railway  Co.,  4  Phila.  24;  Thomas  v.  Railway  Co.,  132  Pa.  504; 
Adolph  V.  Railway  Co.,  76  N.  Y.  530. 

These  being  the  respective  rights  of  the  parties,  the  plaintiff 
came  to  a  point  on  the  road  where  the  defendant's  track  ran  through 
a  snow-drift,  for  a  distance  estimated  by  plaintiff  herself  at  half 
a  block,  where  the  snow  had  been  removed  from  the  track,  leaving 
a  passage  just  wide  enough  for  the  cars,  with  vertical  walls  of  snow 
two  or  two  and  a  half  feet  in  height.  It  was  plainly  a  place  of  dan- 
ger for  a  foot  passenger,  in  case  a  car  should  reach  it,  and  therefore 
a  place  for  unusual  caution  and  vigilance.  But  the  rest  of  the  road 
was,  as  plaintiff  testified,  ankle  deep  in  snow  and  slush,  and  plain- 
tiff took  the  more  dangerous,  but  more  comfortable  way.  She  says 
she  looked  just  before  she  went  into  the  cut,  to  see  if  there  was  a 
car  behind  her,  and  saw  none.  But  on  this,  the  pivotal  point  of  the 
case,  the  uncontradicted  evidence  is  overwhelmingly  against  her. 
The  drift  was  at  the  top  of  a  hill  or  rise,  from  which  there  was 
an  unobstructed  view  in  the  direction  from  which  the  car  was  com- 
ing, fixed  by  the  plaintiff's  own  witnesses  at  quarter  to  half  a  mile, 
and  up  this  hill  the  car  came  at  a  moderate  speed,  with  bells  that 
could  be  heard  for  forty  rods.  Yet  plaintiff  herself  says  she  got  but 
a  little  way  into  the  passage  before  the  car  came  upon  her.  It  is 
unquestionable  that  the  car  must  have  been  plainly  in  sight  at  the 
time  she  entered  this  dangerous  path,  and  if  she  looked  at  all 
it  must  have  been  a  mere  heedless  glance,  which  all  the  evidence 
shows  was  not  an  adequate  performance  of  the  duty  the  situation 
required.  The  case  belongs  clearly  to  the  class  of  Carroll  v.  Rail- 
road  Co.,  12  W.  N.  348,  and  required  the  court  to  pronounce  plain- 
tiff negligent  as  matter  of  law.  The  defendant's  second  point 
should  have  been  affirmed. 

As  this  point  is  conclusive  of  the  case,  it  is  not  necessary  to 
discuss  the  others. 

Judgment  reversed.^ 


TROW  v.  VERMONT  CENTRAL  R.  CO. 

Supreme  Court  of  Vermont,  1852.    24  Vt.  487. 

IsHAM,  J.     The  declaration  in  this  case,  in  substance  states, 
Chat  the  defendants  are  the  owners  and  occupiers  of  a  certain  Rail- 


'  See  accord:  Winter  v.  Federal  Street,  etc.,  R.  Co.,  153  Pa.  St.  26  (1893)  ; 
Schnur  v.  Citizens'  Trac.  Co.,  153  Pa.  St.  31  (1893);  compare  Sieb  v.  Cen- 
tral Penna.  Traction  Co.,  47  Pa.   Sup.  228   (1911),  and  Tenner  v.  Wilkes- 


TROW  V.  VERMONT  CENTRAL  R.  CO.  1395 

road  passing  through  "Falls  Village,"  in  the  town  of  Northfield, 
and  by  the  side  of  and  across  a  public  highway,  leading  through 
that  village ;  and  that  being  such  owners  and  occupiers,  it  was  their 
duty  to  construct  and  maintain  fences  by  the  side  of  their  road, 
suitable  to  prevent  cattle  and  other  animals  from  passing  upon  the 
railroad  track ;  and  also,  for  the  same  purpose  to  erect  and  main- 
tain suitable  cattle  guards  at  all  farm  and  road  crossings.  It  is 
averred,  that  the  defendants  have  neglected  their  duty  in  erecting 
fences  by  the  side  of  their  road,  through  that  village,  and  in  con- 
structing such  cattle  guards ;  and  that  in  consequence  of  this  neglect, 
the  plaintiff's  horse  was  found  upon  the  railroad  track,  and  was 
so  injured  as  to  be  rendered  wholly  worthless,  by  being  run  upon 
by  an  engine  of  the  defendants,  while  in  the  use  of  their  road. 

It  is  to  be  observed  that  the  plaintiff  has  not  in  his  declaration, 
nor  by  evidence  on  the  trial,  attempted  to  charge  the  defendants 
with  any  neglect  or  want  of  care  in  conducting  and  managing  the 
engine,  at  the  time  the  injury  was  committed.  We  are,  therefore, 
to  assume  in  this  investigation,  that  the  train  was  properly  con- 
ducted, and  that  there  was  in  this  respect,  the  exercise  of  that  rea- 
sonable care  and  prudence  on  the  part  of  the  defendants  and  their 
agents,  which  the  law  requires,  at  the  time  the  injury  was  committed. 

The  case  on  the  part  of  the  plaintiff,  must  therefore  rest  upon 
a  duty,  imposed  by  law  upon  the  defendants,  to  erect  and  maintain 
such  fences  and  cattle  guards  upon  their  road,  as  will  prevent  horses 
and  other  animals  from  passing  thereon,  and  upon  proof,  that  the 
injury  was  occasioned  by  a  neglect  on  their  part  to  perform  that 
duty.  "* 

That  a  duty  of  that  character  rests  upon  this  corporation,  must 
be  considered  as  settled  in  this  State,  by  a  decision  of  this  court  in 
the  case  of  Qnimby  v.  Vt.  Cent.  R.  R.  Co.,  23  Vt.  393. 

The  important  question  presented  in  this  case,  arises  upon  the 
evidence  introduced  by  the  defendants,  and  the  charge  of  the  court 
thereon.  The  defendants  introduced  evidence,  showing  that  the 
plaintiff's  horse  had  been  several  times  before  in  the  highway,  and 
with  the  knowledge  and  consent  of  the  plaintiff.  And  the  court  were 
requested  to  charge  the  jury,  "That  if  the  plaintiff's  horse,  at  the 
time  of  the  injury,  was  in  the  highway  with  the  knowledge  and  con- 
sent of  the  plaintiff,  he  could  not  recover." 

It  is  very  evident,  that  if  the  defendants  are  chargeable  with 
gross,  or  any  other  degree  of  neglect,  from  their  want  of  proper 
care  in  making  and  constructing  their  fences  and  cattle  guards,  aris- 
ing from  the  consideration  that  they  must  have  known  and  expected 
such  casualties  and  injuries  would  arise,  the  plaintiff  is  chargeable 
at  least  with  the  same  degree  of  neglect,  in  permitting  his  horse  to 
run  upon  the  highway,  knowing  of  his  exposure  and  liability  to 
injuries  of  this  character;  and  it  is  as  reasonable  to  charge  the  plain- 
tiff with  the  knowledge  and  expectation  that  such  injuries  would 
arise,  as  the  defendants,  and  also  to  require  of  the  plaintiff"  the  ex- 


Barre   &   Wyoming   Valley   Traction  Co.,  202   Pa.    St.   365    (1902),   and   see 
Hause  v.  Transit  Co.,  3  Lehigh  County  L.  J.  42  (1910). 


1396  TROW  V.  VERMONT  CENTRAL  R.  CO. 

ercise  of  as  much  care  and  prudence  in  keeping  his  property  from 
such  exposure  to  such  injuries,  as  is  required  of  the  corporation, 
in  guarding  against  their  commission.  From  the  facts,  therefore,  in 
the  case,  the  plaintiff  was  as  much  in  fault  and  as  equally  charge- 
able with  neglect,  as  the  defendants ;  and  in  each  case,  their  negli- 
gence was  the  remote  cause  of  the  injury,  and  equally  contributed 
to  that  result. 

This  leads  our  investigation  to  the  question,  whether  an  action 
can  be  sustained,  when  the  negligence  of  the  plaintiff  and  the  de- 
fendant has  mutually  co-operated  in  producing  the  injury,  for  which 
their  action  is  brought.  On  this  question,  the  following  rules  will 
be  found  established  by  the  authorities.  When  there  has  been  mu- 
tual negligence,  and  the  negligence  of  each  party  was  the  proximate 
cause  of  the  injury,  no  action  whatever  can  be  sustained.  In  the 
use  of  the  words  "proximate  cause,"  is  meant  negligence  occurring 
at  the  time  the  injury  happened.  In  such  case  no  action  can  be 
sustained  by  either,  for  the  reason,  "that  as  there  can  be  no  appor- 
tionment of  damages,  there  can  be  no  recovery."  So,  where  the 
negligence  of  the  plaintiff  is  proximate,  and  that  of  the  defendant 
remote,  or  consisting  in  some  other  matter  than  what  occurred  at 
the  time  of  the  injury,  in  such  case  no  action  can  be  sustained,  for 
the  reason  that  the  immediate  cause  was  the  act  of  the  plaintiff' 
himself.  Under  this  rule  falls  that  class  of  cases,  where  the  in- 
jury arose  from  the  want  of  ordinary  or  proper  care  on  the  part  of 
the  plaintiff,  at  the  time  of  its  commission.  On  the  other  hand, 
when  the  negligence  of  the  defendants  is  proximate,  and  that  of 
the  plaintiff  remote,  the  action  can  then  well  be  sustained,  although 
the  plaintiff  is  not  entirely  without  fault.  This  seems  to  be  now 
settled  in  England  and  this  country.  Therefore,  if  there  be  negli- 
gence on  the  part  of  the  plaintiff,  yet  if,  at  the  time  when  the  injury 
was  committed,  it  might  have  been  avoided  by  the  defendant,  in  the 
exercise  of  reasonable  care  and  prudence,  an  action  will  lie  for  the 
injury.^  So  in  this  case,  if  the  plaintiff  were  guilty  of  negligence, 
or  even  of  positive  wrong,  in  placing  his  horse  in  the  road,  the  de- 
fendants were  bound  to  the  exercise  of  reasonable  care  and  dili- 
gence in  the  use  of  their  road  and  management  of  the  engine  and 
train,  and  if  for  want  of  that  care  the  injury  arose,  they  are  liable. 

These  principles  have  an  important  application  to  the  case  un- 
der consideration.  The  negligence,  which  caused  the  injury  in  this 
case,  can  not  strictly  be  said  to  be  proximate  in  either  of  the  par- 
ties, but  is  remote,  in  both  cases.  It  was  remote  on  the  part  of 
the  corporation ;  for  it  is  found  in  the  case,  that  there  was  no  negli- 
gence on  their  part  in  the  management  of  the  train,  or  engine,  when 
the  injury  arose,  but  the  neglect  existed  in  not  having  previously 
made  their  fences  and  cattle  guards.  It  was  also  remote  on  the 
part  of  the  plaintiff,  in  permitting  his  horse  to  remain  in  the  high- 
way, exposed  to  such  injury,  after  it  first  came  to  his  knowledge. 


'  See  the  very  valuable  and  instructive  opinion  of  Carpenter,  J.,  in 
Nashua  Iron  &  Steel  Co.  v.  Worcester  &  Nashua  R.  Co.,  62  N.  H.  150 
(1882). 


CAVANAUGH  V.  BOSTON  &  MAINE  RAILROAD.  139/ 

The  injury  arose  from  the  combined  result  of  both  causes.  If  either 
of  the  parties  had  done  their  duty,  and  conformed  to  the  require- 
ments of  the  law,  the  injury  would  not  have  been  sustained.  In 
such  case,  no  action  can  be  sustained  by  either  of  the  parties,  no 
more  than  in  the  case,  where  their  mutual  negligence  is  the  prox- 
imate cause  of  the  injury;  for  the  same  reason  exists  in  the  one 
case,  that  exists  in  the  other.  From  the  nature  of  the  case,  there 
can  be  no  apportionment  of  damages,  and  no  rule  can  be  laid  hold 
of  that  settles  what  one  shall  pay  more  than  the  other.  The  rule 
is  generally  given  in  the  authorities,  that  in  cases  of  mutual  neglect, 
where  it  is  of  the  same  character  and  degree,  no  action  can  be  sus- 
tained.^ 


^^"i 


CAVANAUGH  v.  BOSTON  &  MAINE  RAILROAD. 
Supreme  Court  of  New  Hampshire,  1911.    76  N.  H.  68. 

Case,  for  negligence.  Trial  by  jury  and  verdict  for  the  plain- 
tifif.  Transferred  from  the  January  term,  1910,  of  the  superior 
court  by  Pike,  J. 

Edith  Bolis,  the  plaintiff's  intestate,  was  killed  by  collision  with 
the  defendants'  trains  upon  a  highway  grade  crossing.  At  the  time 
of  her  death  she  was  about  thirteen  years  old.  She  was  driving 
alone  in  an  open  wagon,  immediately  following  a  carriage  in  which 
were  three  adults.  She  was  "driving  slowly,  would  have  seen  the 
train  if  she  had  looked,  and  could  have  stopped  within  six  feet  of 
the  crossing.  The  engineer  testified  that  he  saw  the  teams  approach- 
ing the  crossing  when  the  train  was  about  seventy-two  rods  and 
the  forward  carriage  about  eight  rods  distant  therefrom ;  that  the 
teams  did  not  slacken  their  speed  as  teams  usually  do ;  that  he 
sounded  the  whistle  when  he  was  forty  or  fifty  rods  from  the  cross- 
ing and  continued  to  sound  it  until  the  team  was  struck ;  that  when 


="566  accord:  Marriott  v.  Stanley,  1  M.  &  G.  568  (1840).  In  Stiles  v. 
Geesey,  71  Pa.  439  (1872),  while  the  court  stated  broadly  the  Pennsylvania 
doctrine  that  the  parties  being  mutually  at  fault  there  can  be  no  recovery, 
neither  party  was,  at  any  time  after  the  peril  could  have  been  discovered, 
able  to  avert  it.  both  having  left  their  vehicles  unattended.  So  where  by  rea- 
son of  the  defendant's  antecedent  negligence,  the  defendant,  after  discovering 
the  peril  to  which  the  plaintiff  has  negligently  exposed  himself,  is  unable  to 
avoid  the  accident,  there  can  be  no  recoverv,  Boston  &  Maine  R.  Co.  v.  .1/c- 
Duffcy,  79  Fed.  934  (1897);  Trigg  v.  Water,  etc.,  Co.,  215  Mo.  521  (1908), 
trains'  running  at  such  excessive  speed  that  they  could  not  be  stopped  after 
the  plaintiff  was  discovered  on  the  tracks;  Ozven  v.  Hudson  River  R.  Co.,  2 
Eosw.  374  (N.  Y.  1858),  defective  brakes;  contra,  Baltimore  Consolidated 
R.  Co.  v.  Rifcorvitc,  89  Aid.  338  (1899),  excessive  speed;  Neary  v.  Northern 
Pac.  R.  R.,  37  Alont.  461  (1908)  :  Wcitzman  v.  Nassau  Elec.  R.  Co.,  ZZ  .\pp. 
Div.  585  (N.  Y.  1898);  Labarge  v.  Pcre  Marquette,  134  Mich.  139  (1903), 
semble.  explaining  Schindlcr  v.  Milwaukee.  L.  S.  &  W.  R.  Co.,  87  Mich. 
400  (1891),  both  cases  where  cars  without  lookouts  were  shunted  over 
crossings. 

If  the  defendant  being  present  has  the  opportunity  and  duty  to  observe 
tlie  plaintiff's  helpless  peril,  he  is  liable  though  his  failure  to  notice  it  was  due 
to  his  attention  being  diverted  by  difficulties  in  his  work  caused  by  negli- 
gently bad  equipment,  Springctt  v.  Ball,  4  F.  &  F.  472   (1865). 


1398  CAVANAUGH  V.  I'.OSTOX  .V  MAINE  RAILRO.\D. 

he  failed  to  attract  the  attention  of  the  travelers,  he  applied  the  brakes 
for  an  emergency  .stop,  this  being  done  when  the  train  was  about 
forty  rods  from  the  crossing.  The  teams  drove  upon  the  crossing, 
the  first  one  clearing  the  locomotive.  There  was  evidence  tending 
"to  show  that  the  whistle  was  not  sounded  nor  the  brakes  applied 
until  just  before  the  crossing  was  reached,  and  that  the  train  could 
have  been  brought  to  a  full  stop  within  500  feet. 

The  defendants'  motion  for  a  nonsuit,  on  the  ground  that  there 
was  no  evidence  of  care  on  the  part  of  the  plaintiff's  intestate  at  the 
time  of  the  accident,  was  denied,  subject  to  exception.  The  only 
question  submitted  to  the  jury  was  the  liability  of  the  defendants 
under  the  principles  of  the  "last  clear  chance"  doctrine. 

Parsons^  C.  J.  The  remaining  exception  is  ^to  the  denial  of 
the  motion  for  a  nonsuit,  which  was  asked  upon  the  ground  of  the 
absence  of  any  evidence  of  care  on  the  part  of  the  person  injured. 
As  the  case  is  drawn,  it  may  be  inferred  that  the  existence  of  evi- 
dence of  the  defendants'  fault  was  conceded ;  but  if  such  concession 
was  not  intended,  this  branch  of  the  question  requires  little  con- 
sideration. From  the  testimony  of  the  engineer  it  could  be  found 
that  he  knew  the  teams  were  approaching  the  crossing  in  ignorance 
of  the  coming  train,  at  a  time  w^hen  he  could  have  given  warning 
or  applied  the  brakes  in  season  to  prevent  a  collision ;  and  from  all 
the  evidence  it  niight  be  found  he  did  not  do  either  until  too  late. 
What  the  facts  were,  and  whether  the  engineer's  failure  to  act  was 
negligence  causing  the  injury,  were  questions  for  the  jury.  The 
motion  was  properly  denied  if  the  jury  could  be  permitted  to  find 
from  the  evidence  of  the  conduct  of  the  platntiff's  intestate,  a  girl 
of  thirteen  years,  that  she  exercised  such  care  as  could  reasonably 
be  required  of  such  a  person  under  all  the  circumstances  of  the  case ; 
or  if  she  did  not,  that  the  defendants'  negligence,  as  distinguished 
from  hers,  was  the  sole  proximate  cause  of  the  injury.  The  first 
question  was  not  submitted  to  the  jury,  nor  does  the  case  disclose 
the  form  in  w'hich  the  second  was  presented  to  them. 

Upon  the  evidence  m  the  case,  it  was  for  the  jury  to  say  whether 
the  exercise  by  the  trainmen  of  such  care  as  the  circumstances  re- 
quired, after  the  engineer  discovered  the  deceased,  w^ould  have  pre- 
vented the  injury.  If  it  would,  the  failure  to  exercise  such  care 
was  the  sole  proximate  cause  of  the  injury,  although  the  danger 
was  created  by  the  deceased's  negligent  inattention  to  the  situation. 
This  has  been  held  in  several  cases  upon  facts  identical  with  those 
presented  here  (State  v.  Railroad,  52  N.  H.  528:  Parkinson  v.  Rail- 
way, 71  N.  H.  28;  Little  V.  Railroad,  72  N.  H.  61  ;  S.  C,  72  N.  H. 
502 ;  Yeaton  v.  Railroad,  73  N.  H.  285 ;  Altman  v.  Railway,  75  N. 
H.  573),  and  was  conceded  in  Stearns  v.  Railroad,  75  N.  H.  40,  46. 

The  danger  may  be  created  by  the  inattention  of  both  parties, 
neither  discovering  the  other  until  neither  can  avoid  the  resulting 
injury.  In  such  cases  the  injury  and  the  danger  result  from  the 
same  cause,  the  negligent  inattention  of  both  parties,  and  there  can 
be  no  recovery.  Gibson  v.  Railroad,  75  N.  H.  342 ;  Batchcldcr  w 
Railroad,  72  N.  H.  528. 


CAVANAUGII  Z'.  BOSTON  &  MAINE  RAILROAD.  1399 

If  the  trainmen  see  the  traveler  approaching  the  crossing,  there 
-till  may  be  no  evidence  upon  which  it  can  be  found  that  they  ought 
to  have  apprehended  the  traveler  would  go  upon  the  crossing  in 
advance  of  the  train.  Gahagan  v.  Railroad,  70  5s.  H.  441  ;  IValdron 
V.  Railroad,  71  X.  H.  362.  In  these  cases  the  plaintiffs  fail,  not  be- 
cause of  their  negligence,  but  because  of  the  absence  of  negligence 
in  the  defendants.  The  traveler  may  be  seen  by  the  trainmen  in 
the  act  of  crossing,  at  a  time  when  they  can  avoid  the  injury  and 
the  traveler  can  not.  Steams  v.  Railroad,  75  X.  H.  40 ;  Yeaton  v. 
Railroad,  73  X.  H.  285.  The  train  may  be  discovered  by  the  trav- 
eler at  a  time  wdien  he  could  avoid  injury  by  care.  In  such  case 
there  can  be  no  recovery,  even  if  the  railroad  employees  could  have 
avoided  the  injury  by  like  care.  Shannon  v.  Railroad,  71  X.  H.  286. 
The  person  injured  may  be  incapable  of  taking  care,  and  the  rail- 
road liable  for  negligent  failure  to  discover  him  if  they  ought  to 
have  anticipated  his  presence  in  that  condition.  Edgcrly  v.  Railroad, 
67  X.  H.  312.^  Such  a  case  does  not  differ  from  that  of  pro])erty 
negligently  permitted  by  the  owner  to  be  or  to  go  in  the  way  of  the 
train.  Laronde  v.  Railroad,  73  X.  H.  247.  The  traveler  may  be 
discovered  by  the  trainmen  on  the  crossing,  or  approaching  it 
as  in  this  case,  under  circumstances  indicating  inattention  to 
the  train  or  the  crossing.  In  this  situation,  the  cases  cited 
hold  that  if  ordinary  men,  wnth  the  information  the  trainmen 
have,  would  anticipate  a  collision  at  the  crossing  and  avoid  it, 
the  trainmen's  negligent  failure  to  do  so  is  the  responsible  cause 
of  the  injury.  The  rule  of  most'general  application  deducible  from 
the  authorities  is  that  the  defendants  are  liable  if,  upon  discovery 
of  the  danger,  the  plaintiff  can  not  save  himself,  while  the  defend- 
ants upon  their  discovery  of  the  danger  could  have  avoided  the  in- 
jury. Altman  v.  Raikvav,  75  N.  H.  573;  Little  v.  Railroad,  72  N. 
H.  61;  S.  C.  72  X.  H.  502;  Parkinson  v.  Raikvay,  71  X.  H.  28; 
State  V.  Railroad,  52  X.  H.  523. 

As  the  negligence  of  the  party  injured  in  failing  to  observe  the 
approach  of  the  train  continues  until  the  very  moment  of  the  acci- 
dent, or  at  least  until  it  is  too  late  for  either  party  to  avoid  the  in- 
jury, and  since  he  could  have  stopped  in  a  place  of  safety  after  the 
time  when  the  trainmen  could  have  done  anything  to  prevent  the 
accident,  it  has  been  claimed  that  if  his  negligent  failure  to  observe 
and  stop  is  not  subsequent  to  any  negligence  in  the  operation  of 
the  train,  it  is  at  least  concurrent,  and  there  can  be  no  recovery. 
The  conclusion  that  one  conscious  of  danger  of  serious  injury  to  a 
human  being  if  he  persists  in  the  course  which  he  is  pursuing,  which 
he  can  prevent  by  care,  should  be  discharged  from  responsibility 


'So  in  South  Carolina  it  is  held  that  if  the  defendant  knew  of  the 
plaintiff's  peril  or  ought  to  have  known  of  it  in  the  exercise  of  care,  his 
lack  of  subsequent  care  is  the  sole  proximate  cause  of  the  resulting  injury 
and  therefore  the  plaintiff's  antecedent  negligence  is  not  contributory,  compare 
Bodie  v.  Charleston  &  W.  C.  R.  Co.,  61  S.  Car.  468  (1901).  and  Harbert  v. 
Atlanta  &  C.  A.  L.  R.  Co.,  78  S.  Car.  537  (1907)— see  also  Righter  v.  Pctir- 
svlvania  R.  Co.,  42  N.  J.  L.  180  (1880)— with  Jones  v.  Charleston  &  W.  C.  R. 
Co.,  61  S.  Car.  556  (1901) 


1400  CAVANAUGII  v.  BOSTON  &  MAINE  RAILROAD. 

because  of  negligent  ignorance  of  tlie  danger  in  the  person  injured, 
is  so  fundamentally  unjust  and  contrary  to  natural  reason  that  few- 
cases  are  to  be  found  that  carry  the  logic  of  the  rule  of  contribu- 
tory negligence  to  that  extent.  With  substantial  unanimity,  recov- 
•ery  is  permitted  in  such  cases,  either  upon  the  ground  that  the  lack 
of  attention  in  the  party  injured  is  not  the  proximate  cause  of  the 
injury,  or  that  the  failure  of  the  trainmen  to  act  under  such  cir- 
cumstances so  far  partakes  of  the  nature  of  a  wanton  or  intentional 
wrong  that  the  law  as  to  contributory  negligence  has  no  applica- 
tion.- Murphy  v.  Deane,  loi  Mass.  455,  463 ;  Union  Pacific  Ry.  \. 
Cappier,  66  Kans.  649, — 69  L.  R.  A.  516,  note ;  Dyerson  v.  Railroad, 
74  Kans.  528 — 7  L.  R.  A.  (N.  S.)  132,  note;  i  Thomp.  Com.  Neg. 
^.  238;  2  lb.,  .9.  1598;  Cool.  Torts  ^674.  It  may  be  that  neither  ex- 
planation is  strictly  logical,  and  that  the  real  foundation  for  the  rule 
is  merely  its  fundamental  justice  and  reasonableness.  The  justice 
of  the  rule,  that  "the  contributory  negligence  of  the  party  injured 
will  not  defeat  the  action  if  it  be  shown  that  the  defendant  might, 
by  the  exercise  of  reasonable  care  and  prudence,  have  avoided  the 

^The  defendant's  failure  to  take  steps  to  avoid  injuring  the  plaintiff 
who  is  in  a  position  of  helpless  peril  is  often  spoken  of  as  "wanton,"  "wilful," 
or  "reckless,"  and  this  whether  the  defendant  knows  of  such  peril  or  ought 
to  have  knowledge  of  it,  Smifh  v.  Norfolk  &  S.  R.  Co.,  114  N.  Car.  728 
(1894)  ;  Cole  v.  Metropolitan  St.  Ry.  Co.,  121  Mo.  App.  605  (1906)  ;  Rawitzer 
\\  St.  Paul  City  R.  Co.,  93  VAnn.  84  (1904),  but  see  Anderson  v.  Minne- 
apolis, St.  P.  &  S.  S.  M.  R.  Co.,  103  }.Iinn.  224  (1908),  and  it  is  immaterial 
whether  the  defendant's  subsequent  fault  is  in  taking  no  precautions  or  in 
taking  insufficient  steps  to  avert  the  accident.  Cole  v.  Metropolitan  R.  Co.,  121 
Mo.  App.  605  (1906);  Ga.  Pae.  R.  Co.  v.  Lee,  92  Ala.  262  (1890;,  p.  270, 
where  failure  to  "resort  to  all  reasonable  effort  to  avoid  the  accident"  after 
knowledge  of  the  peril,  is  held  to  imply  "willingness  to  persist  in  a  course  of 
conduct  which  will  naturally  or  probably  result  in  disaster  or  an  intent  to  per- 
petrate wrong;"  and  see  Birniinghani  Railway  &  Electric  Co.  v.  Pinckard, 
124  Ala.  372  (1899),  holding  that  "an  honest  employment  of  all  available 
means  to  prevent  the  injury  is  essential"  to  rebut  wantonness,  "a  partial  ern.- 
ployment  of  available  means,  evincing  some  degree  of  care  is  not  enough." — 
p.  375. 

An  engineer  is,  however,  entitled  to  assume,  until  the  contrary  appear, 
that  one  on  or  near  the  track  will  remove  himself  from  his  dangerous  posi- 
tion and  that  he  is  using  his  senses  to  ascertain  the  necessity  of  so  doing 
and  while,  if  he  is  obviously  unaware  of  the  approach  of  the  train,  the  en- 
gineer is  bound  to  give  warning  signals  to  attract  his  attention,  he  is  not 
bound  to  stop  his  train  or  reduce  speed,  unless  such  person  is  obviously  in- 
capable of  protecting  himself,  being  a  child,  or  drunk,  or  deaf,  etc.,  until 
it  plainlv  appear  that  he  intends  to  remain  in  his  place  of  peril,  see  Little 
Rock  R'.  &  Electric  Co.  v.  Billings,  173  Fed.  903  (1909),  31  L.  R.  A.  (N.  S.) 
1031,  with  exhaustive  note.  So,  too,  the  fact  that  a  person  apparently  in  full 
possession  of  his  faculties  is  approaching  the  track  is  not  enough  to  indi- 
cate that  he  will  attempt  to  cross,  if  the  approaching  train  is  within  his  view, 
Birmingham  R.  Co.  V.  Bowers,  110  Ala.  328  (1895)  ;  Denver  &  R.  G.  R.  Co. 
V.  Buffehr,  30  Colo.  27  (1902)  ;  Roanoke  R.  &  Elec.  Co.  v.  Carroll,  112  Va. 
598  (1911);  Backus  v.  Norfolk  &  Atlantic  Terminal  R.  Co.,  112  Va.  292 
(1911),  with  w-hich  compare  Green  v.  Los  Angeles  Terminal  R.  Co.,  143  Cal. 
31  (1904),  where  the  plaintiff  was  a  pedestrian,  with  Harrington  v.  Los  An- 
geles, 140  Cal.  514  (1903),  where  the  plaintiff  was  a  bicvclist  racing  toward 
the  street  railway  crossing,  Rawitzer  v.  St.  Paul  City  R.  Co.,  93  Minn.  84 
(1904),  bicyclist  reading  paper,  and  Montgomery  v.  Lansing  City  Elec.  R. 
Co.,  103  Mich.  46  (1894),  where  the  plaintiff  was  a  member  of  a  band,  play- 
ing while  marching  down  the  street  in  front  of  the  defendant's  car. 


i 


CAVANAUGH  V.  BOSTON  &  MAINE  RAILROAD.  I4OI 

consequences  of  the  injured  party's  negligence."      {Grand   Trunk 
Ry.  V.  Ives,  144  U.  S.  408,  429),  may  be  a  sufficient  foundation  for  it. 
Cases  where  at  the  time  of  the  injury  the  plaintiff  is  not  con- 
scious of  the  danger  in  season  to  avert  it,  either  because  he  is  drunk,"* 

^Accord:  McCIanahan  v.  Vickshurg  S.  &  P.  R.  Co.,  Ill  La.  781  (1902)  ; 
McGuire  v.  Vickshurg,  S.  &  P.  R.  Co.,  46  La.  1543  (1894)  ;  Murphy  v.  ll'a- 
hash  R.  Co.,  228  Mo.  56  (1910),  especially  pp.  81-83;  Pickett  v.  Wilmington 
&  IVeldon  R.  Co.,  117  N.  Car.  616  (1895),  overruling  Smith  v.  Norfolk  & 
S.  R.  Co.,  114  X.  Car.  728  (1894),  contra;  Lloyd  v.  Alhermarle  etc. 
iR.  Co.,  118  N.  Car.  1010  (1896)  ;  and  see  Little  Rock  etc.  R.  Co.  v.  Wilson, 
90  Tenn.  271  (1891),  all  cases  where  the  defendants'  negligence  was  a  fail- 
ure to  observe  the  drunken  plaintiff's  helpless  peril.  See  also,  Ellsworth,  J.,  in 
] shell  V.  Nczv  York  &  N.  H.  R.  Co.,  27  Conn.  393  (1858),  p.  404,  and  Black- 
burn, J.,  in  Radlcy  v.  London  &  N.  W.  R.  Co.,  L.  R.  10  PZx.  100  (1875),  p.  103. 
"So  in  the  case  of  a  drunken  man  who  might  be  lying  on  the  highway,  if  any 
one  carelessly  driving  on  the  road  drove  over  him,  he  would  have  to  pay  dam- 
ages, because  the  drunken  man  does  not  lose  his  right  of  action  by  his  neg- 
ligence." 

It  is  generally  held  that  where  the  defendant,  knowing  of  the  plaintiff's 
helplessly  drunken  condition,  fails  to  exercise  care  to  avoid  injuring  him, 
the  plaintiff  may  recover  though  his  drunkenness  prevents  him  from  taking 
that  care  of  himself  which  if  sober  he  could  have  and  which  would  have 
saved  him.  In  such  cases  the  defendants'  fault  generally  takes  one  of  three 
forms,  (1)  a  failure  to  stop  a  train  or  other  vehicle  in  time,  St.  Louis,  /.  M. 
&  S.  R.  Co.  V.  Wilkcrson,  46  Ark.  513  (1885)  ;  Georgia  Southern  &  F.  R.  Co. 
v.  George,  92  Ga.  760  (1900)  ;  Krcnzcr  v.  Pittshurgh  C.  C.  &  St.  L.  R.  Co., 
151  Ind.  587  (1898)  ;  scinhle  (in  both  of  which  the  defendant  has  received 
information  which  should  have  led  it  to  expect  the  plaintiff's  probable  pres- 
ence on  its  tracks)  ;  Central  R.  Co.  v.  'Glass,  60  Ga.  441  (1878)  ;  Cincinnati, 
L,  St.  L.  6-  C.  R.  Co.  V.  Cooper,  120  Ind.  469  (1889)  ;  Init  see  Vicacchcro  v. 
Rhode  Island  Co.,  26  R.  I.  392  (1904)  — (2)  allowing  the  drunken  passenger 
to  ride  in  a  place  manifestly  dangerous  to  one  in  his  condition  without  warn- 
ing him  of  the  danger  or  removing  him  from  the  place  or  ejecting  him  from 
the  train,  Wheeler  v.  Grand  Trunk  R.  Co.,  70  N.  H.  607  (1901)  ;  but  see 
Fisher  v.  W.  Va.  &  P.  R.  Co.,  39  W.  Va.  366  (1894),  where  it  was  held  that 
warning  the  passenger  of  the  danger  of  riding  on  the  platform  was  a  suffi- 
cient performance  of  their  duty — (3)  ejecting  a  helplessly  drunken  plaintiff 
from  a  train  or  premises  at  a  place  obviously  dangerous  to  him  because  of 
his  dangerous  condition,  though  perhaps  safe  to  one  in  full  possession  of  his 
faculties,  R.  Co.  v.  Valvellv,  32  Ohio  St.  345  (1877)  ;  Black  v.  Nez.'  York  N. 
H.  &  II.  R.  Co.,  193  Mass.  448  (1907).  See,  however,  Edgerlv  v.  Union  St. 
R.  Co.,  67  N.  H.  312  (1892)  ;  Kceshan  v.  Elgin  A.  &  S.  Trac.  Co.,  229  111. 
533  (1907);  Bagcard  v.  Consolidated  Trac.  Co.,  64  N.  J.  L.  322  (1899), 
Warren  v.  Pittsburgh  etc.  Ry.,  243  Pa.  15  (1914),  holding  the  railroad  com- 
pany not  liable  where  a  drunken  passenger,  expelled  at  a  place  reasonably 
safe  for  one  of  his  condition,  in  his  drunken  wanderings  stumbles  into  danger. 

The  plaintiff"  can  not  of  course  expect  especial  care  unless  his  drunken- 
ness is  known  to  the  defendant.  Strand  v.  W.  M.  R.  Co..  67  Mich.  380  (1887). 

On  the  other  hand  there  is  authority  to  the  effect  that  where  the  de- 
fendant does  not  know  of  the  plaintiff's  peril,  its  alleged  negligence  consisting 
in  a  failure  to  discover  it,  the  plaintiff's  drunkenness  or  his  deliberate  lying 
down  to  sleep  in  a  place  of  danger  is  a  bar  to  his  recovery,  on  the  ground 
that  his  drunkenness  or  other  involuntary  incapacity  does  not  excuse,  him 
from  exercising  that  care  for  himself  which  he  could  and  should  have  ex- 
ercised if  sober,  he  having,  except  for  drunkenness,  an  opportunity  of  dis- 
covering the  approach  of  the  defendant's  vehicle  equal  to  that  which  those  in 
charge  thereof  had  to  discover  his  helpless  danger.  Little  Rock  R.  &■  Flee.  Co. 
V.  Billings,  173  Fed.  903  (C.  C.  A.  8th  Circ.  1909)  :  Little  Rock  &  Ft.  Smith  R. 
Co.  v.  Pankhursf.  36  Ark.  371  (1880)  ;  South  Western  R.  Co.  v.  Hankcrsnu. 
61  Ga.  114  (1878)  ;  Houston  &  T.  C.  R.  Co.  v.  Sxmpkins.  54  Tex.  615  (1881)  ; 
Gulf,  Colorado  &  S.  F.  R.  Co.  v.  Matthews,  32  Tex.  Civ.  App.  137  (1003)  : 
and  see  Vizacchero  v.  Rhode  Island  Co.,  26  R.  I.  392   (1904);  McKiUop  v. 


1402  CAVANAUGH  V.  BOSTON  &  MAINE  RAILROAD. 

asleep,  absorbed  in  introspection,  or  otherwise  inattentive,  while  the 
defendant  has  knowledge  of  the  danger,  simply  fall  into  the  class 
where  the  defendant  is  present  and  the  plaintiff  is  absent.  They 
are  governed  by  Davies  v.  Mann,  10  M.  &  W.  546.  The  result  in 
that  case  would  have  been  the  same  if  the  plaintiff  had  been  asleep 
by  the  wayside  within  shouting  distance  of  his  donkey.  The  plain- 
tiff's inability  to  control  the  situation  is  the  test ;  and  it  is  imma- 
terial whether  he  is  not  in  actual  charge  of  the  subject  of  injury 
because  the  absence  of  his  body  shows  that  he  could  not  have  been, 
or  the  fact  be  proved  by  showing  that  for  other  cause  he,  himself, 
was  not  in  control.  Whether  under  such  circumstances  the  defend- 
ant, upon  the  information  he  has,  ought  to  have  known  of  the  plain- 
tiff's condition — that  he  was  drunk,  asleep,  non- judging,  or  not  ob- 
serving— bears  on  the  defendant's  negligence.  If  it  can  not  be  found 
he  ought  to  have  known  the  plaintiff's  condition,  he  is  not  liable ; 
if  he  ought,  he  may  be. 

"The  law  no  more  holds  one  responsible  for  an  unavoidable, 
or  justifies  an  unavoidable,  injury  to  the  person  of  one  who  care- 
lessly exposes  himself  to  danger,  than  to  his  property  similarly  sit- 
uated in  his  absence."  The  law  deals  with  the  behavior  of  the  par- 
ties in  the  situation  in  which  it  finds  them,  regardless  of  how  that 
situation  was  produced.  If  the  two  parties  approach  the  point  of 
collision  asleep  or  inattentive,  and  neither  wakes  up  or  becomes  alive 
to  the  situation,  the  concurrent  negligence  of  both  prevents  a  re- 
covery from  either ;  but  if  one  wakes  up,  or  becomes  aware  of  the 
danger  existing  from  the  fact  that  another  asteep  or  inattentive  is 
thoughtlessly  in  danger  of  injury  by  him,  his  fault,  if  he  can  but 
does  not  avert  the  injury  from  such  danger,  is  alone  the  cause  of 
the  subsequent  injury.  There  is  no  difference  between  sailing  the 
seas  with  a  rudderless  ship  and  traversing  the  highway  with  a  rud- 
derless mind.  One  knowing  the  situation,  who  can  by  care  avert 
a  collision  and  does  not,  is  chargeable  for  the  resulting  loss,  de- 
spite the  uncontrolled  character  of  the  other's  progress.  Nashua 
etc.  Co.  V.  Railroad,  62  N.  H.  159. 

The  injury  in  this  case  arose  because  the  defendants  with  their 
train  and  the  deceased  with  her  team  both  attempted  to  occupy  at 
the  same  time  a  portion  of  a  public  highway  which  each  had  the 
right  to  use,  but  which  neither  had  the  right  to  occupy  when  it  was 
in  use  by  the  other.  Each  was  bound  to  such  acts  as  would  con- 
stitute care  under  the  circumstances,  to  prevent  an  attempt  at  such 
joint  occupation.     While  due  care  would  ordinarily  require  that  the 

Duluth  St.  R.  Co.,  53  Minn.  532  (1893)  ;  W.  Cent  R.  Co.  v.  Cragen,  71  111. 
177  (1873);  and  Hoffman  v.  Peoria  B.  &  C.  Trac.  Co.,  164  111.  App.  270 
(1911),  where,  however,  it  did  not  appear  that  the  defendant  knew  or  should 
have  known  of  the  plaintiff's  peril  in  time  to  have  avoided  injuring  him. 

It  is  of  course  clear  that  where  the  defendant  is  not  present  or  able  to 
control  the  course  of  events,  the  plaintiff's  drunkenness  does  not  excuse  his 
negligence  in  running  into  a  danger  created  bv  the  defendant's  negligence. 
Woods  v.  Tipton  County  Board  of  Comrs,  128  Ind.  289  (1890);  Seymcr 
V.  Tozvn  of  Lake,  66  Wis.  651  (1886).  plaintiff  while  drunk  drove  into  a  de- 
fect in  a  highway.  Berry  v.  Northeastern  R.  Co.,  72  Ga.  137  (1883),  plaintiff 
while  drunk  fell  into  a  railway  cutting. 


INDIANAPOLIS  TRAC,  &  T.  CO.  V.   CROLY.  I4O3 

wagon  should  wait  and  allow  the  train  to  go  by,  the  failure  to  ex- 
ercise such  care  and  the  negligent  occupation  of  the  crossing  by 
the  wagon  gave  the  train  no  right  to  attempt  to  pass  at  the  same 
time.  State  v.  Railroad,  52  N.  H.  528,  556 ;  Huntress  v.  Railroad, 
66  N.  H.  185  ;  Gahagan  v.  Railroad,  70  N.  H.  441 ;  Little  v.  Railroad, 
72  N.  H.  502,  503;  Continental  Imp.  Co.  v.  Stead,  95  U.  S.  161. 
Whether  the  use  of  the  crossing  at  the  time  by  the  traveler  was 
careful  or  negligent,  the  train  could  not  lawfully  use  it  while  it  was 
in  use  as  a  part  of  the  highway.  Having  notice  that  the  traveler 
was  about  to  use  it  at  a  time  when  they  could  have  refrained  from 
entering  upon  it,  they  are  as  much  in  the  wrong  and  as  fully  the 
sole  authors  of  the  resulting  injury  as  the  traveler  would  be  who 
attempted  to  pass  with  knowledge  that  it  was  in  use  by  the  train.* 

The  situation  is  simply  this:  Both  parties  were  proposing  to 
exercise  a  common  right  which  could  not  be  enjoyed  by  both  at 
the  same  time ;  the  defendants  knew  of  the  deceased's  proposed  use ; 
the  deceased  did  not  know  the  defendants'  purpose.  If  the  deceased 
was  in  fault  for  not  knowing  the  defendants'  desire  then  to  pass 
over  the  crossing,  the  defendants  were  in  fault  for  attempting  to 
cross  while  the  path  was  in  use.  As  the  deceased's  negligent  occu- 
pation of  the  crossing  did  not  increase  the  defendants'  right  to  use 
it,  they  can  not  recover  of  her  for  injury  from  their  wrongful  at- 
tempt, but  must  pay  the  damage  done  to  her  by  their  wrongful  act. 
As  her  negligent  act  gave  them  no  right  to  cross,  it  is  immaterial 
in  her  suit  for  the  injury  whether  ber  act  of  which  they  had  notice 
was  negligent  or  careful. 

Exceptions  overruled. 

Bingham,  J.,  dissenting.^ 


INDIANAPOLIS  TRACTION  &  TERMINAL  CO.  v.  CROLY. 

Appellate  Court  of  Indiana,  1911.    96  N.  E.  973. 

Appeal  from  the  action  of  the  Circuit  Court  of  Morgan  county  in  over- 
ruling a  motion  for  a  new  trial  after  a  verdict  for  the  plaintifif  and  entering 
judgment  thereon.  The  motion  for  a  new  trial  was  based  inter  alia  upon  the 
ground  that  the  evidence  was  not  sufficient  to  sustain  the  verdict  of  the  jury 
and  that  the  Judge  had  erred  in  his  instruction  to  the  jury. 

Lairy,  J.  In  the  application  of  (the  doctrine  of  last  clear  chance)  it 
must  be  borne  in  mind  that  a  person  who,  by  failure  to  use  due  care  for  his 
own  safety,  has  exposed  himself  to  danger,  occupies  a  diflferent  position  in  the 
eyes  of  the  law  from  one  who  is  in  the  exercise  of  due  care.     To  entitle  hin 


*  Compare  Clay  v.   Wood,  ante. 

"" Accord:  Borders  v.  Metropolitan  R.  Co.,  168  Mo.  App.  172  (1912); 
De  Lou  V.  Kokomo  Citv  St.  R.  Co.,  22  Ind.  App.  2,77  (1898)  ;  Bruggcman  v. 
///.  Cent.  R.  Co..  \A7  Iowa  187  (1910);  Welsh  v.  Tri-Citv  R.  Co.,  148  Iowa 
200  (1910);  JVilson  v.  Illinois  Cent.  R.  Co.,  150  Iowa  33  (1911);  Goldrick 
V.  Union  R.  Co..  20  R.  I.  128  (1897)  ;  see  Rawitzcr  v.  St.  Paul  City  R.  Co..  93 
Minn.  84  (1904);  contra,  Everett  v.  Los  Angeles  R.  Co.,  Robards  v.  Trac. 
Co.,  Drown  v.  R.  Trac.  Co.,  Butler  v.  St.  R.  Co.,  note  to  French  v.  R. 
Co.,  ante. 


T404  INDIANAPOLIS  TRAC.  &  T.  CO.  t'.  (.ROLY. 

to  recover,  notwithstanding  his  want  of  care,  it  must  appear  that  prior  to  his 
injury  the  company  owed  him  a  special  and  particular  duty,  the  violation  of 
which  can  be  treated  as  the  sole  proximate  cause  of  his  injury. 

There  is  a  general  duty  resting  upon  a  person  in  charge  of  a  street  car 
to  use  care  to  prevent  injury  to  all  persons  and  property  with  which  it  is 
likely  to  come  in  contact,  and  such  care  must  be  proportionate  to  the  danger 
incident  to  its  operation.  This  duty  is  a  general  one,  and  rests  upon  the  mo- 
torman  at  all  times  and  under  all  circumstances  during  the  time  he  is  oper- 
ating such  car ;  but  the  duty  to  take  particular  precautions  to  prevent  injury 
to  a  particular  person,  who.  by  want  of  due  care  on  his  part,  has  exposed 
himself  to  immediate  threatened  danger,  or  is  about  to  do  so.  is  a  special 
duty  which  arises  out  of  the  exigencies  of  the  situation.  It  is  the  failure  tu 
discharge  this  particular  duty  wdiich  gives  room  for  the  application  of  the 
doctrine  of  last  clear  chance,  by  which  the  company,  in  such  case,  is  held 
liable  to  a  person,  who,  by  want  of  due  care,  has  exposed  himself  or  his 
property  to  the  danger  of  receiving  such  injury.  The  particular  situation  of 
the  parties  prior  to  the  injury  must  be  such  as  to  give  rise  to  this  special  duty 
to  the  particular  person  injured  some  appreciable  time  before  the  injury- 
occurs.' 

From  the  very  language  in  which  the  rule  is  generally  expressed,  it  is 
apparent  that,  in  order  to  hold  a  defendant  liable  by  the  application  of  the 
rule,  it  must  appear  from  the  evidence  that  such  defendant  s  opportunity  of 
preventing  the  injury  was  later  in  point  of  time  than  that  of  the  plaintiff, 
and  that  such  defendant  failed  to  take  advantage  of  the  last  clear  chance. 
Where  evidence  in  the  case  tends  to  show  that  t^je  situation  of  the  parties 
just  prior  to  the  injury  was  such  that  the  defendant,  by  the  exercise  of  due 
care,  could  have  prevented  it,  and  that  the  piaintifif  could  not.  then  the  rule 
becomes  applicable.  If,  however,  the  undisputed  evidence  shows  that  the  op- 
portunity of  the  plaintiff  to  avoid  the  injury  was  as  late  or  later  than  that 
of  the  defendant,  the  rule  can  have  no  application,  and  the  court  should  re- 
fuse to  instruct  upon  the  doctrine  under  consideration. 

The  weight  of  authority,  as  well  as  the  better  reason,  supports  the  prop- 
osition that,  in  cases  w'here  the  negligence  of  the  plaintiff  is  antecedent  tc 
that  of  the  defendant,  and  where  such  negligence  of  the  plaintiff  is  deemec 
to  have  ceased  prior  to  the  injury,  the  plaintiff  may  recover  by  the  applicatic 
of  the  doctrine  of  last  clear  chance ;  and  that  it  makes  no  difference,  in  sucn 


'  "As  was  said  in  the  case  of  Evansville  &  S.  Traction  Co.  v.  Spiegel,  94 
N.  E.  718 :  "The  first  essential  thing  that  the  evidence  must  prove,  or  tend 
to  prove,  is  that  the  decedent  was  in  a  situation  of  apparent  and  imminent 
danger  at  some  appreciable  time  before  the  injury."  The  duty  of  exercising 
the  particular  precautions  does  not  arise  until  the  occasion  w4iich  gives  rise 
to  such  duty  exists ;  but,  when  the  occasion  presents  itself,  the  special  duty 
at  once  arises,  and  continues  until  the  time  of  the  injury.  From  the  time 
the  emergency  arises  until  the  injury  occurs,  the  motorman  must  use  every 
reasonable  means  to  prevent  the  threatened  injury.  If,  during  the  time, 
he  fails  to  use  proper  means  to  avoid  the  injury,  the  company  will  be  held 
liable,  or  if  his  failure  to  avoid  the  injury  during  the  time  is  due  to  the  neg- 
ligent rate  of  speed  at  which  the  car  is  running  at  the  time  the  emergencv 
arose,  or  to  defective  brakes  or  other  negligence  of  the  defendant,  which 
prevented  the  motorman  from  avoiding  the  injury,  when  otherwise  he  could 
have  done  so,  such  negligence  will  be  deemed  to  intervene,  and  will  be  held 
to  be  the  sole  proximate  cause  of  the  injury." 


INDIANAPOLIS  TRAC.  &  T.  CO.  V.  CROLY.  I405 

a  case,  whether  the  injury  was  caused  by  a  negligent  failure  to  discover 
plaintiff's  danger,  or  by  negligence  in  failing  to  use  reasonable  care  to  pre- 
vent the  injury  after  discovering  such  danger. 

In  cases  ni  which  it  appears  that  the  plaintiff,  without  observing  his  sur- 
roundings, negligently  goes  upon  the  track  of  the  defendant  or  in  such  close 
proximity  to  it  as  to  expose  himself  to  the  danger  of  injury  from  a  passing 
car,  and  where  there  is  nothing  to  prevent  him  from  observing  his  danger 
and  avoiding  the  injury  at  any  time  before  it  occurs,  and  where  it  also  ap- 
pears that  the  motorman  by  reason  of  his  negligence  did  not  see  the  plain- 
tiff or  his  danger  in  time  to  avoid  the  injury  *  *  *  the  negligence  of  the 
plaintiff  is  concurrent  and  not  antecedent,  and  the  reason  upon  which  the 
general  rule  is  based  can  not  apply.  If  the  want  of  care  on  the  part  of  the 
plaintiff  consists  in  a  failure  to  discover  his  own  danger,  and  if  the  want  of 
care  on  the  part  of  the  defendant  consists  of  a  like  failure  to  observe  the 
dangerous  situation  of  the  plaintiff,  and  if  such  want  of  due  care  on  the  part 
of  both  continues  until  the  injury  occurs,  or  becomes  so  imminent  that  nei- 
tner  can  prevent  it,  the  plaintiff  can  not  recover.  Under  such  circumstances, 
the  opportunity  of  the  plaintiff  Lo  observe  the  danger  is  equal  to  that  of  the 
defendant,  and  the  duty  to  discover  the  danger  and  avoid  the  injury  by  the 
exercise  of  due  care  rests  equally  upon  him  and  the  defendant."  If  the  op- 
portunity of  the  plaintiff  to  avoid  the  injury  was  as  late  as  that  of  the  de- 
fendant, how  can  it  be  said  that  the  defendant  had  the  last  clear  chance  of 
avoiding  it?  The  test  is:  What  wrongful  conduct  occasioning  the  injury 
was  in  operation  at  the  very  moment  it  occurred  or  became  inevitable?  If, 
just  before  the  climax,  one  party  only  ^ad  the  power  to  prevent  the  injury, 
and  he  neglected  to  make  use  of  it,  the  responsibility  is  his  alone;  but  if  each 
had  the  power  to  avoid  such  injurj^  and  each  failed  to  use  it,  then  their  neg- 
ligence is  concurrent,  and  neither  can  recover. 

In  this  case  it  appears  from  the  uncontradicted  evidence  that  the  plain- 
tiff walked  across  the  street  in  plain  view  of  the  approaching  street  car  which 
was  moving  at  a  rapid  rate  of  speed,  and  stepped  upon  the  track  only  three 
or  four  feet  in  front  of  such  moving  car.  If  she  had  used  due  care  to  ol)- 
serve  the  approach  of  the  car  a  moment  before  she  stepped  upon  the  track, 
she  could  have  avoided  the  injury.  Her  negligence  was  concurrent  and  not 
antecedent,  and  therefore  the  doctrine  of  last  clear  chance,  as  applied  to  an- 
tecedent and  subsequent  negligence  can  have  no  application  to  this  evidence. 

There  is  at  least  one  class  of  cases  in  which  it  has  been  held  that  an  in- 
jured person  may  recover  by  the  application  of  the  doctrine  of  last  clear 
chance,  notwithstanding  his  own  negligence  continues  up  to  the  very  time  of 
the  injury. 

Where  the  motorman  actually  saw  the  person  injured  and  realized,  or 
should  have  realized,  ihe  peril  to  which  he  was  exposed,  or  was  about  to 
expose  himself,  in  time  to  have  prevented  the  injury,  *  *  *  the  special 
duty  toward  the  particular  person  arises  as  soon  as  the  motorman  sees  him 
under  such  conditions  as  would  indicate  to  a  person  of  ordinary  prudence 
that  he  was  in  danger  of  being  injured  by  the  car,  or  was  about  to  expose 
himself  to  such  injury.'    It  then  becomes  the  special  duty  of  the  motorman  to 


'See  Consumer's  Brewing   Co.  v.   Doyle's  Admx..   102  Va.   399    (1904). 
and  Bragg  v.  Cent.  N.  E.  R.  Co.,  152  App.  Div.  444  (N.  Y.  1912). 

"This,  however,  does  not  mean,  as  seems  to  be  contended,  that  defend- 


1406  INDIANAPOLIS  TRAC.  &  T.  CO.  V.   CROLY. 

use  every  reasonable  means  to  avoid  injuring  him;  and,  if  he  does  not  do  so, 
the  injured  person  may  recover  notwithstanding  his  want  of  care  in  failing 
to  discover  the  approach  of  the  car  continued  up  to  the  very  instant  of  the 
injury,  and  notwithstanding,  also,  that  the  plaintiff  possessed  the  physical 
ability  to  have  avoided  the  injury  in  case  he  had  discovered  his  peril  at  any 
lime  before  the  accident  happened.  Cases  of  this  kind  frequently  arise  out 
of  an  injury  to  a  person  working,  walking,  riding,  or  driving  upon  the  tracks 
of  a  street  railway  company,  or  out  of  an  injury  to  a  person  who  by  reason 
of  the  abstracted  condition  of  his  mind,  or  by  reason  of  his  attention  being 
diverted,  or  for  some  other  reason,  enters  upon  the  track  of  such  company, 
without  observing  his  danger  from  approaching  cars,  and  remains  oblivious 
to  such  danger  until  he  is  struck  and  injured.  In  such  a  case  the  company 
may  be  properly  held  liable  by  an  application  of  the  doctrine  of  last  clear 
chance,  if  there  is  evidence  from  which  the  jury  may  properly  find  that  the 
motorman  actually  knew  of  the  perilous  situation  of  the  person  subsequently 
injured  in  time  to  have  avoided  the  injury  by  the  exercise  of  proper  care. 
Under  such  a  state  of  facts,  the  motorman  possessed  the  physical  ability  to 
avoid  the  injury  before  the  accident,  and  so  also  has  the  injured  party.  In 
this  respect  their  chances  are  equal;  but  the  motorman  actually  possesses  the 
knowledge  of  the  danger  and  appreciates  the  necessity  of  taking  steps  to 
avoid  the  injury,  while  the  person  injured  has  no  actual  knowledge  of  his 
danger,  and  does  not  appreciate  the  necessity  of  taking  steps  to  avoid  it. 

The  fact  that  the  motorman  sees,  or  otherwise  has  actual  knowledge  of, 
the  dangerous  situation  in  which  the  negligence  of  the  plaintiff  has  placed 
him,  and  that  he  observes  that  the  plaintiff  is  unconscious  of  his  surround- 
ings and  oblivious  of  his  danger,  gives  to  such  motorman  the  last  clear 
chance  of  preventing  the  injury,  and,  in  case  he  fails  to  take  advantage 
of  it,  the  plaintiff  may  recover.  Some  courts  base  the  right  of  the  plaintiff 
to  recover  in  such  a  case  upon  a  different  ground,  and  assign  as  a  reason  that 
the  conduct  of  the  motorman,  in  failing  to  use  proper  means  to  stop  the  car 
after  seeing  the  situation  of  the  plaintiff  and  observing  that  he  is  not  likely 
to  escape  injury,  is  of  such  a  reckless,  wanton,  and  wilful  character  that  it 
amounts  to  constructive  wilfulness,  and  that  contributory  negligence  is  not 
a  defense  to  an  action  based  on  an  injury  so  caused.  Krenzer  v.  Pittsburgh, 
etc.,  R.  Co.,  151  Ind.  587,  43  N.  E.  649,  52  N.  E.  220,  68  Am.  St.  Rep.  252; 
Smith  V.  Norfolk,  etc.,  R.  Co.,  114  N.  C.  728,  19  S.  E.  863,  923,  25  L.  R.  A.  287. 

If  there  is  some  evidence  fn  the  record  tending  to  prove  that  the  motor- 
man  actually  saw  the  plaintiff  approaching  the  track  and  that  her  conduct 
and  appearance  at  that  time  was  such  as  to  indicate  that  she  did  not  observe 
the  approach  of  the  car  and  was  oblivious  of  her  danger,  then  the  verdict 
can  be  sustained,  even  though  her  want  of  care  in  failing  to  see  the  car  con- 
tinued up  to  the  time  of  her  injury,  provided  that  therd'  is  also  evidence  tend- 
ing to  prove  that,  after  the  motorman  knew  of  her  perilous  situation,  he  had 
time  to  have  avoided  the  injury  by  the  exercise  of  due  care. 

The  evidence  upon  this  question  is  conflicting.     From  a  consideration  of 


ant  must  know  that  the  injury  is  inevitable  if  he  fails  to  exercise  care,  and 
the  decisions  indicate  no  such  requirement.  It  is  enough  that  the  circum- 
stances of  which  the  defendant  has  knowledge  are  such  as  to  convey  to  the 
mind  of  a  reasonable  man  a  question  as  to  whether  the  other  party  will  be 
able  to  escape  the  threatened  injury.  One  in  such  a  situation  is  in  a  dan- 
gerous position." 


INDIANAPOLIS  TRAC.  &  T.  CO.  V.  CROLY.  I407 

the  evidence,  we  can  not  say  that  the  jury  could  not  have  properly  found 
that  the  motorman  knew  of  the  danger  to  which  plaintiff  was  about  to  ex- 
pose herself  in  time  to  have  prevented  the  injury.  The  evidence  is  sufficient 
to  sustain  the  verdict. 

Instruction  No.  2  is  inaccurate  and  erroneous  for  more  than  one  reason. 
The  jury  are  told  by  this  instruction  that,  if  either  the  motorman  or  con- 
ductor saw  plaintiff  and  her  peril,  or  could  have  seen  it  by  the  exercise  of 
due  care,  and  failed  to  stop  the  car  and  take  other  precautions  to  prevent 
injuring  her,  then  they  should  find  for  the  plaintiff,  even  though  she  was 
guilty  of  negligence  in  not  looking  out. 

This  instruction  is  defective  because  it  fails  to  inform  the  jury  that 
some  appreciable  space  of  time  must  have  intervened  after  the  motorman 
saw  plaintiff's  danger  and  before  the  injury  occurred  within  which  time 
some  precaution  could  have  been  taken  to  prevent  the  injury.''  If,  after 
discovering  the  peril  to  which  the  plaintiff  was  exposed,  or  was  about  to 
expose  herself,  the  motorman  could  have  prevented  the  injury  by  the  exercise 
of  proper  care,  it  was  his  duty  to  do  so ;  but  from  this  instruction  the  jury 
would  be  warranted  in  finding  against  the  defendant  by  an  application  of  the 
rules  of  last  clear  chance,  in  case  it  found  that  the  motorman  saw  the  dan- 
ger and  peril  of  plaintiff  and  did  not  stop  the  car  and  prevent  the  injury, 
regardless  of  whether  or  not  he  had  time  to  do  so  after  discovering  such 
peril  and  before  the  injury. 

The  instruction  is  erroneous  for  the  further  reason  that  it  authorized  a 
recovery  in  this  case  by  the  application  of  the  doctrine  of  last  clear  chance 
in  the  event  that  the  jury  found  that  th£  motorman,  by  the  exercise  of  ordi- 
nary care,  might  have  discovered  the  plaintiff's  peril  in  time  to  have  pre- 
vented the  injury,  although  he  had  no  actual  knowledge  of  such  danger. 

We  can  see  no  room  for  the  application  of  the  doctrine  of  last  clear 
chance  to  a  case  where  the  failure  on  the  part  of  the  defendant  to  avoid  the 
injury  to  plaintiff,  after  he  had  negligently  exposed  himself  to  danger,  was 
due  solely  to  the  failure  on  the  part  of  the  motorman  to  observe  plaintiff's 
danger,  and  where  it  also  appears  that  the  plaintiff's  failure  to  avoid  the  in- 
jury resulted  solely  from  a  like  want -of  care  on  his  part  in  failing  to  observe 
his  own  danger,  and  where  his  opportunity  of  avoiding  the  injury  was  as 
late  or  later  than  that  of  the  defendant.  To  apply  the  doctrine  of  last  clear 
chance  to  a  case  of  this  kind  would  be  either  to  make  it  an  exception  to  the 
rule  that  contributory  negligence  of  the  plaintiff  bars  a  recovery  in  an  action 
based  on  negligence,  or  to  hold  that  the  negligence  of  the  defendant  in  such 
a  case  is  more  culpable  than  that  of  the  plaintiff,  and  thus  recognize  the  doc- 
trine of  comparative  negligence. 

In  this  case,  the  facts  bearing  upon  this  question  are  undisputed,  and 
but  one  reasonable  inference  can  be  drawn,  and  that  is  that  the  plaintiff's 
want  of  care  continued  up  to  the  time  of  her  injury.  Her  right  to  recover 
in  this  case,  therefore,  depended  upon  the  question  as  to  whether  or  not  the 


"Accord:  Real  Estate  Trust  &  Ins.  Co.  v.  Gzwn,  113  Va.  337  (1912); 
Purccll  v.  Chicago  &  N.  W.  R.  Co.,  117  Iowa  667  (1902)  ;  Stewart  v.  Port- 
laud  L.  &  P.  Co.,  58  Ore.  377  (1911),  and  see  Rider  v.  Swacuse  Rapid 
Transit  R.  Co.,  171  N.  Y.  139  (1902). 


1408  WEITZMAN  V.  NASSAU  ELEC.  R.  R.  CO. 

motorman  had  actual  knowledge  of  her  danger  in  time  to  have  avoided  the 
injury. 

The  judgment  is  reversed,  with  directions  to  grant  a  new  trial.' 


WEITZMAN  r.  NASSAU  ELECTRIC  R.  R.  CO. 

Appellate  Dkision  of  the  Supreme  Court  of  New  York,  1898. 
33  N.  Y.  App.  Div.  585. 

Woodward,  J.  The  child  was  not  killed  by  the  original  contact,  as  far  as 
appears  from  the  evidence,  but  was  picked  up  on  the  fender  and  was  carried 
a  distance  of  from  32  to  150  feet,  when  he  rolled  off  from  the  fender  in  front 
of  the  still  advancing  car,  and  was  run  over  and  killed,  the  car  stopping 


'^Accord:  Montgomery  v.  Lansing  City  Elec.  R.  Co.,  103  Mich.  46  (1894)  , 
Bedell  v.  Detroit  Y.  &  A.  A.  R.  Co.,  131  Mich.  668  (1902).  with  which  com- 
pare Tunison  v.  IVeadock,  130  Mich.  141  (1902)  ;  Harrington  v.  Los  Angeles 
R.  Co.,  140  Cal.  514  (1903),  and  see  Te.vas  &  N.  O.  R.  Co.  v.  McDonald,  99 
Tex.  207  (1905). 

In  the  following  cases  it  is  held  that  the  plaintiff  may  recover,  notwith- 
standing his  continuing  ability  down  to  the  time  of  the  accident  to  observe 
his  peril  and  avoid  the  injury,  by  the  exercise  of  due  care  and  tiis  continuing 
and  concurring  negligence  in  not  doing  so,  though  those  in  charge  of  the  de- 
fendants' vehicle  did  not  perceive  his  peril  and  realize  his  unconsciousness 
thereof,  if  by  the  exercise  of  the  care,  owiag  to  him  as  a  member  of  the 
public,  they  could  have  perceived  and  realized  these  facts,  Birmingham  L.  & 
P.  R.  Co.  V.  Brant h,  141  y\la.  614  (1904)  ;  Baltimore  Trac.  Co.  v.  Wallace,  77 
Md.  435  (1893);  Cons.  R.  Co.  v.  Rifcowitz.  89  Md.  338  (1899);  Barrie  v. 
St.  Louis  Transit  Co.,  102  Mo.  App.  87  (1903)  ;  Lassiter  v.  Raleigh  &  G.  R. 
Co.,  133  N.  Car.  244  (1903);  Memphis  St.  R.  Co.  v.  Haxnes,  112  Tenn.  712 
(1904)  ;  and  see  dicta  in  Southern  R.  Co.  v.  Bailey,  110  Va.  833  (1910). 

This  rule,  often  called  the  "humanitarian  doctrine,"  is  said  by  Goode,  J., 
in  Hutchinson  v.  St.  Louis  &  M.  R.  R.  Co.,  88  Mo.  App.  376  (1901),  to  be 
"an  exception  to  the  law  of  contributory  negligence"  applied  only  "in  contro- 
versies arising  from  injuries  due  to  violent  impacts  and  collisions"  and  "its 
real  basis  is  to  be  sought  in  its  suppos,ed  necessity  for  public  security."  It 
is,  however,  applied  where  the  property  and  not  the  person,  of  the  plaintiff  is 
injured.  Borders  V.  Metropolitan  R.  Co.,  168  ]\Io.  App.  172  (1912),  coupe 
struck  while  attempting  to  cross  track  ahead  of  an  oncoming  car.  For  a  vig- 
orous attack  on  this  rule,  see  the  dissenting  opinion  of  Woodson,  J.,  in 
Murphy  v.  Wabash  R.  Co.,  228  Mo.  56  (1910). 

But  even  in  these  jurisdictions,  a  plaintiff,  who  being  fully  aware  of 
all  the  facts  and  as  able  to  avoid  the  injury  as  the  defendant,  fails  to  look 
out  for  his  own  safety,  Watson  v.  Mound  City  St.  R.  Co.,  133  Mo.  246 
(1895),  or  deliberately  takes  a  chance  of  crossing  in  front  of  a  car  which 
he  knows  is  approaching,  can  not  recover,  McNah  v.  United  Rys.  &  Elec.  Co., 
94  Md.  719  (1902)  ;  Mcidling  v.  United  Rvs.  &  Elec.  Co.,  97  Md.  73  (1903)  ; 
Heying  v.  United  Rys.  &  Elec.  Co.,  100  Md.  281  (1905). 

In  some  jurisdictions  the  same  result  is  reached  by  holding  that  one 
who  is  walking,  riding,  or  driving  along  street  railway  tracks  is  not  bound 
to  continually  look  behind  him  to  see  whether  a  car  is  approaching,  being 
entitled  to  rely  upon  the  motorman  giving  him  warning  of  his  approach, 
Fickett  V.  Lewiston  A.  &  W.  St.  R.  Co.,  110  Maine  267  (1913);  Adams  v. 
Camden  &  S.  R.  Co.,  69  N.  J.  L.  424  (1903)  and  cases  cited;  or  that  one 
about  to  cross  or  turn  into  such  a  track  is  guilty  of  no  negligence  if  he  sig- 
nals to  the  motorman  his  intention  to  cross  at  a  public  crossing  while  the  car 
is  far  enough  off  to  be  stopped  before  striking  him,  Polacci  v.  Interurbau 
St.  R.  Co.,  90  N.  Y.  S.  341  (1904).  See  also,  Conrad  v.  Elizabeth,  P.  &  C.  j'. 
R.  Co.,  70  N.  J.  L.  676  (1904). 


WEITZMAX   V.   NASSAU  KLIX.  K.  K.  CO.  I4O9 

within  its  own  length  after  the  child  had  fallen.  The  learned  trial  court 
charged  the  jurj-  that  "the  accident,  if  it  happened,  and  the  damage,  if  it  was 
occasioned,  and  the  actionahle  injury,  if  there  is  one,  came  at  the  time  the 
railroad  car  struck  his  person,  and  no  matter  what  happened  afterwards, 
while  that  may  have  increased  the  injury,  it  has  not  increased  the  liahility  of 
the  company.  *  *  *  The  whole  charge  is  negligence,  and  if  the  defend- 
ant was  negligent  and  the  plaintifif,  or  the  child,  w^as  free  from  negligence  at 
the  time  the  actual  collision  occurred,  you  are  not  to  render  a  verdict  in  this 
ca>e  hecause  of  another  negligence  which  you  may  find  the  motorman  com- 
mitted after  the  actual  collision.  Their  right  of  action  was  made  out  then, 
if  it  was  made  out  at  all,  and  there  can  be  no  case  here  of  the  picking  up  of 
the  cliild  upon  the  fender  giving  a  right  of  action,  or  a  right  of  action  arising 
by  reason  of  something  that  occurred  afterwards;  that  would  be  entirely 
illegal,  and  you  must  dismiss  it  from  your  minds."  In  this  we  are  of  opinion 
the  trial  court  was  in  error. 

Conceding  that  the  plaintiff's  intestate  was  siii  juris,  and  that  he  w^as,  as 
a  matter  of  law,  guilty  of  contributory  negligence  in  stepping  upon  the  track 
of  the  defendant  at  the  same  moment  that  the  car  arrived  at  the  point  of 
contact,  the  evidence  in  the  case  shows  that  the  child  was  not  killed  by  the 
original  impact,  but  that  he  was  picked  up  on  the  fender  and  carried  a  con- 
siderable distance,  wdien  he  finally  rolled  off  and  was  crushed  under  the 
wheels.  To  say  that  the  defendant  owed  this  child  no  duty;  that  it  is  respon- 
sible for  no  degree  of  negligence  on  the  part  of  its  servants  after  it  had 
struck  the  child  and  failed  to  kill  him,  is  to  utterly  mistake  the  policy  and  the 
rules  of  law.  Whatever  may  have  been  Hie  duties  or  obligations  of  the  par- 
ties up  to  the  moment  that  the  child  was  picked  up  on  the  fender,  there  can 
be  no  question  as  to  the  obligation  of  the  defendant  after  the  feat  had  been 
accomplished,  and  a  failure  to  discharge  that  obligation  was  negligence,  to 
which  the  child,  under  the  circumstances,  could  not  contribute.  It  was  the 
duty  of  the  defendant,  as  we  have  already  pointed  out,  to  equip  its  cars  in 
such  a  manner  as  to  reduce  to  a  minimum  the  chances  of  accident.  The  duty 
to  equip  the  cars  with  fenders  carries  with  it  the  duty  to  so  operate  them  as 
to  accomplish  the  end  for  which  they  are  designed,  and  a  human  being,  hav- 
ing been  gathered  into  one  of  those  fenders,  no  matter  by  what  degree  of 
negligence  on  his  part,  imposes  upon  the  defendant  the  immediate  duty  of 
so  operating  the  car  as  to  afford  him  an  opportunity  to  be  taken  from  his 
dangerous  position.  Whatever  the  degree  of  negligence  on  the  part  of  the 
individual  in  the  original  contact,  that  negligence  culminated  in  the  accident 
which  landed  him  in  the  net  of  the  fender.  From  that  moment  a  new  rela- 
tion existed  between  the  parties,  and  any  act  or  omission  on  the  part  of  the 
defendant  amounting  to  a  lack  of  the  care  demanded  by  the  situation  and 
resulting  in  the  death  of  plaintiff's  intestate,  is  sufficient  to  charge  the  com- 
pany with  negligence.  It  is  not  to  be  understood  that  the  defendant  becomes 
an  insurer  of  every  person  who  is  caught  in  its  fender,  but  simply  that  it  is 
bound  to  use  that  same  degree  of  care  which  a  reasonably  careful  and  pru- 
dent man  would,  or  ought  to  use  under  the  same  circumstances,  and  this  is 
always  a  question  for  the  jury  to  pass  upon.  When  the  plaintiff's  intestate 
reached  a  place  upon  the  fender  of  defendant's  car,  the  defendant  had  notice 
that  the  child  was  in  a  dangerous  position,  and  if  it  had  time,  and  with  the 
exercise  of  reasonable  care  could  have  prevented  the  injury  or  death  of  the 


I4IO  NEHRIXG  V.    CONNECTICUT   CO. 

child,  it  was  its  duty  to  do  so,  and  a  failure  on  its  part  was  negligence  which 
entitled  the  plaintiff  to  recover,  and  the  question  of  whether  the  defendant 
did  or  did  not  discharge  this  duty  should  have  been  submitted  to  the  jury. 
The  rule  of  law  is  that,  "notwithstanding  negligence  upon  the  part  of  the 
person  injured,  he  may  recover  if  the  railway  company,  after  such  negligence 
occurred,  could,  by  the  exercise  of  ordinary  care,  have  discovered  it  in  time 
to  have  avoided  inflicting  the  injury."  (7  Am.  &  Eng.  Ency.  of  Law  (2d 
ed.),  437.)^ 


George  W.  Wheeler,  Jr.,  dissenting  in  Nehring  v.  Connecticut  Co. 
Supreme  Court  of  Errors  of  Connecticnf,  1912.    86  Conn.  109. 

In  each  case  of  discovered  peril  caused  by  one's  negligence  the  question 
is,  did  the  defendant  have  the  opportunity  after  such  discovery,  and  was  it 
his  duty,  to  have  avoided  the  accident?  Whether  the  conduct  of  the  motor- 
man  was  gross  negligence,  or  ordinary  negligence,  the  breach  of  duty  was 
the  same  in  kind,  though  differing  in  degree.  If  one  walks  upon  a  railroad 
track  drunk,  or  in  a  reverie,  or  otherwise  careless ;  or  if  one  stands  or  lies 
on  or  so  near  the  railway  track  as  to  be  in  danger  and  unconscious  of  it;  or 
if  one  is  in  a  position  of  peril  through  his  own  negligence  from  which  he  is 
unable  to  extricate  himself,  the  person  knowing  or  having  the  means  and  the 
duty  to  know  of  his  presence  owes  hin>^he  duty  of  avoiding  injuring  him. 
One  who  is  negligently  in  a  position  of  danger  and  unconscious  of  it  is  in 


^Accord:  Green  v.  Metropolitan  R.  Co.,  42  N.  Y.  App.  Div.  160  (1899). 
The  New  York  cases  are  in  great  confusion,  the  general  tendency  being  to- 
ward regarding  the  plaintiff's  negligence  as  a  bar,  unless  the  defendant  was 
guilty  of  some  new  act  of  negligence  on  the  part  of  the  defendant  occurring 
after  the  plaintiff's  negligence  had  culminated  in  placing  him  in  helpless  peril, 
Rider  v.  Svracusc  Rapid  Transit  R.  Co.,  171  N.  Y.  139  (1902).  But  the  de- 
cisions do  not  clearly  show  what  is  such  a  new  act  of  negligence  and  whether 
the  defendant's  knowledge  of  the  plaintiff's  peril  is  essential  or  not.  In 
Costello  V.  Third  Ave.  R.  Co.,  161  N.  Y.  317  (1900),  the  motorman  ac- 
celerated the  speed  of  his  car  without  looking  ahead,  when,  if  he  had  done 
so,  he  would  have  seen  the  plaintiff  trying  to  cross ;  however,  this  case  might 
well  have  been  decided  in  the  plaintiff's  favor  on  the  ground  that  he  could 
have  crossed  safely  but  for  the  acceleration  which  he  had  no  reason  to  ex- 
pect and  that  therefore  his  attempt  to  cross  was  not  negligent  at  all.  Nor  is  it 
clear  when  a  new  situation  arises  which  creates  a  new  situation  in  which  the 
defendant's  inaction  amounts  to  a  new  act  of  negligence,  compare  with  tlie 
principal  case  Rider  v.  Syracuse  Rapid  Transit  R.  Co.,  171  N.  Y.  139  (1902), 
in  which  the  court  refused  to  regard  the  pushing  of  the  plaintiff's  wagon 
along  the  track  for  twenty  feet  after  the  collision,  so  overturning  it  and  in- 
juring him,  as  a  new  act  of  negligence. 

As  to  whether  knowledge  of  or  duty  to  know,  plaintifif's  helpless  peril 
makes  subsequent  inaction  a  new  act  of  negligence,  compare  JJ'asmer  v.  R.  R. 
80  N.  Y.  212  (1880).  McKcon  v.  The  Steinway  R.  Co.,  20  App.  Div.  601 
(N.  Y.  1897),  and  TatarcUa  v.  N.  Y.  &  Queens  County  R.  Co.,  S3  App. 
Div.  413  (N.  Y.  1900)  with  Bortz  v.  Drv  Dock' E.  B.  &  B.  R.  Co.,  79  N.  Y. 
1046  (1903)  and  McDonald  v.  Metro.  R.  Co.,  87  N.  Y.  S.  699  (1904):  see 
also,  Csatlos  v.  Metro.  St.  R.  Co..  70  App.  Div.  606  (N.  Y.  1902).  where 
the  driver  unsuccessfully  did  all  he  could  after  the  plaintiff's  peril  was  dis- 
covered, but  it  was  contended  that  had  the  brake  been  in  good  order  he 
could  have  stopped,  with  which  compare  Green  v.  Erie  R.  Co.,  11  Hun  333 
(N.  Y.  1877). 


KEHRIXG  v.    CONNECTICUT   CO.  I4II 

no  different  situation  than  if  lie  were  incapable  of  extricating  himself  from 
his  peril.^ 

The  opinion  of  the  court  classifies  in  live  groups  the  several  kinds  of 
cases  which  have  been  thought  to  be  within  the  "last  clear  chance"  doctrine. 
In  group  one,  the  defendant,  instead  of  doing  his  duty,  does  something  which 
is  a  new  act  of  negligence.^  In  group  two,  the  peril  is  one  from  which  the 
plaintiff  can  not,  or  can  not  reasonablj',  extricate  himself.  Each  group  sup- 
ports a  recovery.  In  group  three,  means  of  escape  were  open  to  the  plaintiff 
down  to  the  accident,  but  he  remained  unconscious  of  his  peril.  The  opinion 
holds  that  if  the  plaintiff  remains  passive  after  exposing  himself  to  peril  and 
does  nothing  to  materially  change  that  condition,  there  may  be  a  recovery.^ 
But  in  group  four,  assuming  the  same  facts  as  in  group  three,  the  court  holds 
that  if  the  plaintiff  after  exposing  himself  to  peril,  instead  of  permitting  the 
fixed  condition  to  remain  unchanged  continues  as  an  active  agent  in  pro- 
ducing the  condition  under  which  the  injury  was  received  down  to  its  occur- 
rence, or  until  it  Avas  too  late  for  the  defendant  to  avoid  the  accident,  there 
can  be  no  recovery.  In  group  five,  the  defendant  knows,  or  ought  to  know, 
that  the  injured  one  is  careless  and  is  about  to  expose  himself  to  danger  of 
which  he  is  unconscious,  and  after  such  knowledge  he  has  the  opportunity 
to  avoid  injury  to  him,  and  in  such  case  the  court  holds  there  can  be  no 
recovery. 

We  have  attempted  to  show  that  the  breach  of  duty  of  the  defendant  in 
each  of  these  several  groups  is  the  same,  and  was  a  new  act  of  negligence 
of  the  defendant,  viz.:  the  failure  of  the  defendant  to  avoid  injuring  the 
plaintiff  after  he  knew  of  his  peril  when  iie  was  either  unconscious  of  it  or 
incapable  of  extricating  himself  from  it,  and  that  this  breach  was  the  proxi- 
mate cause  of  the  accident  while  the  plaintiff's  prior  negligence  was  the  re- 
mote cause. 

The  distinction  between  active  and  passive  negligence  made  in  groups 
three  and  four,  is  new  to  our  law,  as  well  as  to  the  law  of  negligence  gen- 
erally prevailing  in  this  country  and  in  England.     On  analysis  it  does  not 


^The  plaintiff  was  struck  by  one  of  the  defendants'  cars  as  he  stepped 
on  its  street  railway  tracks.  The  evidence  showed  that  the  plaintiff,  without 
looking  to  see  whether  a  car  was  approaching,  started  to  cross  the  defend- 
ants' street  railway  tracks  at  an  oblique  angle  with  his  back  half  turned  to 
the  car,  which  ran' him  down  just  as  he  stepped  on  the  track.  The  street  was 
clear  of  obstructions  and  his  conduct  and  oln'ious  unconsciousness  of  dan- 
ger were  plainly  observable  by  the  motorman  though  there  was  no  direct 
evidence  that  the  motorman  actuallv  saw  him.  The  majority  of  the  court, 
G.  \V.  ^^■heeler  and  R.  Wheeler,  jj..  dissenting,  held  tlrat  a  verdict  was 
rightly  directed  for  the  defendant,  since  the  plaintiff  was  "not  rnerely  pass- 
ivelv  permitting  an  already  fixed  condition  to  remain  unchanged"'  but  when 
injured  was  "an  actor  on  the  scene"  who  "by  his  own  volition"^  "brings  into 
the  situation  which  confronts  the  defendant  changed  conditions"  and  so  his 
conduct  is  "a  concurring  efficient  cause"  and  his  negligence  being  contribu- 
tory, he  could  not  recover  unless  the  defendants'  conduct  is  "open  to  the 
charge  of  wilfulness  or  wantonness." 

-Smith  V.  Conn.  R.  &■  Lighting  Co.,  80  Conn.  268  (1907),  the  defendants 
motorman  said  the  plaintiff  was  about  to  cross  the  track,  in  negligent  ob- 
livion that  the  car  was  onlv  a  short  distance  away,  he  tried  to  stop  the  car, 
but  being  inexperienced  became  confused  and  instead  accelerated  its  speed, 
causing  the  collision  in  which  the  plaintiff  was  injured. 

^As  in  Nichols  V.  Conn.  Co.,  83  Atl.  1022,  85  Conn.  710  (1912). 


T4I2  THOROGOOD    7'.    BRYAN. 

seem  logical.  A  is  crossing  a  trolley  track  when  hailed  hy  a  friend ;  he  stops 
upon  the  track  to  talk  and  negligently  fails  to  use  his  senses  to  discover  an 
approaching  car.  The  motorman  could  have  seen  A  in  his  place  of  peril, 
unconscious  of  his  danger,  and  in  time,  with  the  exercise  of  reasonable  care, 
to  have  avoided  injuring  him;  instead  he  drives  on  his  car  and  kills  A.  The 
opinion  would  hold  A  negligent  in  being  upon  the  track  without  using  his 
senses  to  keep  out  of  the  way  of  the  oncoming  car,  but  that  as  he  remained 
passive  and  did  nothing  to  change  his  situation  of  peril  after  the  motorman 
had  the  opportunity  to  have  avoided  the  accident,  he  may  recover.  But  if  A, 
instead  of  stopping  on  the  track  had  gone  on  his  way  across  or  upon  the 
track  and  had  been  struck,  his  negligence  would  have  been  active  and  con- 
tinued to  the  accident  and  would  have  been  concurrent  with  that  of  the 
motorman.  It  must  be  considered  that  the  breach  of  the  motorman's  duty 
would  have  been  the  same  in  each  case :  a  failure  to  use  reasonable  care  to 
avoid  the  accident.  We  see  no  reason  why  it  should  be  available  in  the  one 
case  and  not  in  the  other.  In  neither  case  has  the  plaintiff's  negligence 
changed.  It  never  became  passive  or  nonexistent.  It  remained  to  the  time 
of  the  accident.  It  ceased,  in  a  legal  sense,  to  be  a  proximate  cause  of  the 
accident.  A  was  relieved  of  its  consequences  because  the  negligence  of  the 
motorman  in  failing  to  avoid  the  accident  intervened  and  became  its  proxi- 
mate cause.  If  this  distinction  holds,  and  A  be  upon  a  trolley  track  intoxi- 
cated and  asleep,  his  negligence  is  pas^e;  if  awake  and  walking  his  negli- 
gence is  active.^ 


SECTION  4. 

Contributory  Negligence  of  Persons   Other  Than  the  Plaintiff 
(Imputed  Negligence). 


THOROGOOD  v.   BRYAN. 

Court  of  Common  Pleas,  1849.    8  Manning,  Granger  &  Scott,  115. 

CoLTMAX,  J.  The  case  of  Thorogood  v.  Bryan  seems  distinctly  to  raise 
the  question  whether  a  passenger  in  an  omnibus  is  to  be  considered  so  far 
identified  with  the  owner,  that  negligence  on  the  part  of  the  owner  or  his 
servant  is  to  be  considered  negligence  of  the  passenger  himself.  As  I  under- 
stand the  law  upon  tnis  subject,  it  is  this, — that  a  party  who  sustains  an  in- 
jury from  the  careless  or  negligent  driving  of  another,  may  maintain  an  ac- 
tion, unless  he  has  himself  been  guilty  of  such  negligence  or  want  of  due 
care  as  to  have  contributed  or  conduced  to  the  injury.  In  the  present  case, 
the  negligence  that  is  relied  on  as  an  excuse,  is,  not  the  personal  negligence 
of  the  party  injured,  but  the  negligence  of  the  driver  of  the  omnibus  in 
which  he  Avas  a  passenger.     But  it  appears  to  me,  that,  having  trusted  the 


'Compare  Baltimore  Trac.  Co.  v.  Wallace,  77  Md.  43.S  (1893),  holding 
that  the  defendants'  duty  is  the  same  whether  the  plaintiff  is  upon  or  ap- 
proaching the  tracks,  if  his  unconsciousness  of  danger  is  or  ought  to  have 
been  observed. 


CAHILL  V.   CINCINNATI,   KTC,   R.   CO.  I4I3 

party  by  selecting  the  particular  conveyance,  the  plaintiff  has  so  far  idcnti- 
tied  himself  with  the  owner  and  her  servants,  that,  if  any  injury  results  from 
their  negligence,  he, must  be  considered  a  party  to  it.  In  other  words,  the 
passenger  is  so  far  identified  with  the  carriage  in  which  he  is  travelling,  that 
want  of  care  on  the  part  of  the  driver  will  be  a  defence  of  the  driver  of  the 
carriage  which  directly  caused  the  injury. 

IsIaule,  J.  On  the  part  of  the  plaintiff,  it  is  suggested  that  a  passenger 
in  a  public  conveyance  has  no  control  over  the  driver.  But  I  think  that  can 
not  with  propriety  be  said.  He  selects  the  conveyance.  He  enters  into  a 
contract  with  the  owner,  whom,  by  his  servant  the  driver,  he  employs  to 
drive  him.  If  he  is  dissatisfied  with  the  mode  of  conveyance,  he  is  not 
obliged  to  avail  himself  of  it.  According  to  the  terms  of  his  contract,  he 
unquestionably  has  a  remedy  for  any  negligence  on  the  part  of  the  person 
with  whom  he  contracts  for  the  journey.  But,  as  regards  the  present  defend- 
ant, he  is  not  altogether  without  fault. 

He  chose  his  own  convej-ance,  and  must  take  the  consequences  of  any  de- 
fault of  the  driver  whom  he  thought  fit  to  trust. 


'7 


CAHILL  V.  CINCINNATI  &c.  RAILWAY  CO. 

Court  of  Appeals  of  Kentucky,  1891.    92  Ky.  345. 

Lewis,  J.  Another  question  argued  by  counsel  is  whether  ncp^- 
ligence  on  the  part  of  Henry  Conrad^^  assuming  it  to  be  proved, 
can  be  imputed  to  plaintiff  in  bar  of  recovery.  The  general  rule, 
as  settled  by  this  court,  is  that  when  an  injury  is  occasioned  by 
concurrent  negligence  of  two  persons  the  fault  of  one  is  no  excuse 
for  the  other,  but  both  are  liable  to  the  party  injured.  {Danville, 
&c..  Turnpike  Road  Co.  v.  Stczi'art,  2  Met.,  119;  Louisville,  &c., 
R.  Co.  V,  Case,  9  Bush,  720.)  In  both  those  cases  the  plaintiff'  was 
a  passenger  in  a  public  conveyance.-    But  the  conditions  upon  which 

^  Henry  Conrad  owned  and  was  driving  the  buggy  in  which  the  plain- 
tifif  was  being  driven  when  injured. 

"  The  courts,  both  state  and  Federal,  of  the  United  States  arc  practically 
unanimous  in  holding  that  the  negligence  of  a  common  carrier  will  not  pre- 
clude recovery  by  a  passenger  thereof  against  a  third  party  whose  negligence 
concurs  with  that  of  the  carrier  in  causing  the  passenger's  injury,  Buniiiuj 
v.  Hoc/sett,  139  Pa.  St.  363  (1890),  overruling  Lockhart  v.  Lichfenthaler,  46 
Pa.  151  (1863),  which  had  imputed  the  contributory  negligence  of  a  common 
carrier  to  a  passenger  on  grounds  of  public  policy,  (i.  e.,  that  the  carrier's 
sole  responsibility  was  an  incentive  to  care  and  diligence),  while  refusing  to 
impute  the  negligence  of  the  driver  of  a  private  vehicle  to  an  occupant 
thereof;  Wabash,  St.  Louis  &  Pac.  R.  Co.  v.  Shacklct,  105  111.  364  (1883); 
Knitner  v.  UndcU  R.  Co.,  29  Mo.  App.  502  (1888)  :  Bennett  v.  N.  J.  R.  &  T. 
Co.,  36  N.  J.  L.  161  (1873)  ;  Chapman  v.  Nezv  Haven  R.  Co..  19  N.  Y.  341 
(1859)  ;  Transfer  Co.  v.  Kellv,  36  Ohio  St.  86  (1880)  :  Carlisle  v.  Brisbane, 
113  Pa.  St.  344  (1886)  ;  Cuddy  v.  Horn,  46  Mich.  596  (1881).  and  see  Prideau.v 
v.  Mineral  Point,  43  Wis.  513  (1878).  Nor  will  the  contributory  negli.gence 
of  the  driver  of  a  hired  vehicle,  whether  hired  at  a  public  stand,  a  livery 
stable  or  bv  any  other  special  contract,  be  imouted  to  the  hirer.  Little  v. 
Hackett,  116  U.  S.  366  (1886)  ;  Randolph  v.  Riordon.  155  Mass.  331  (1891)  : 
New  York,  L.  E.  &  IV.  R.  Co.  v.  Stcuibrcnner,  A7  N.  J.  L.  161  (1885)  :  and 
see  the  very  exhaustive  note  to  Schultz  v.  Old  Colony  St.  R.  Co.,  8  L.  R.  A. 


I4I4  CAHILL  V.  CINCINNATI,  ETC.,  R.   CO. 

contributory  negligence  of  one  of  such  persons  can  be  imputed  to 
the  plaintiff  in  an  action  against  the  other,  as  held  in  the  latter  case, 
are  that  he  must  have  then  been  the  agent  or  servant  or  subject 
to  the  government  or  control  of  the  plaintiff.  It  does  not  therefore 
seem  to  make  any  difference  in  such  case  whether  the  party  injured 
was  at  the  time  a  passenger  in  a  public  conveyance  paying  his  fare, 
or  riding  in  a  private  vehicle  free  of  charge  at  invitation  of  the 
owner  and  driver ;  but  the  true  test  is  whether  his  relation  to  the 
]:)erson  whose  negligence  is  sought  to  be  imputed  to  him  was  such 
as  would  have  rendered  him  liable  in  case  another  than  himself  had 
been  injured  by  such  concurrent  negligence.  For  to  defeat  an  ac- 
tion of  a  party  injured  by  showing  contributory  negligence  of  an- 
other, or  to  render  him  liable  for  that  other  person's  negligence, 
not  being  himself  in  fault,  either  the  maxim  qui  facit  per  alinm,  facit 
per  se  must  apply — that  is,  the  relation  of  master  and  servant"  or 
principal  and  agent  must  exist — or  else  that  they  were  engaged  in 
a  joint  enterprise  whereby  mutual  responsibility  for  each  other's  acts 
existed,  which  was  clearly  not  the  case. 

Robinson  v.  iV^zf  York,  &c.,  R.  Co.,  66  N.  Y.  11,  was  the  case, 
like  this  in  every  respect,  of  a  female  who,  while  riding  in  a  buggy 
at  the  invitation  of  a  young  man,  the  owner  and  driver,  was  in- 
jured by  collision  with  a  railroad  train,  and  in  discussing  the  same 
question  we  are  now  considering^  Church,  C.  J.,  said :  "I  am  unable 
to  find  any  legal  principle  upon  which  to  impute  to  the  plaintiff  the 
negligence  of  the  driver.  *  *  *  fhe  acceptance  of  an  invita- 
tion to  ride  creates  no  more  responsibility  for  the  acts  6i  the  driver 
than  the  riding  in  a  stage-coach,  or  even  a  train  of  cars,  providing 
there  was  no  negligence  on  account  of  the  character  or  condition 
of  the  driver,  or  of  the  safety  of  the  vehicle,  or  otherwise.  It  is 
no  excuse  for  the  negligence  of  the  defendant  that  another  person's 
negligence  contributed  to  the  injury,  for  whose  acts  the  plaintiff* 
was  not  responsible." 

It  is  true  a  passenger  in  a  public  as  well  as  a  private  vehicle 
may,  by  his  own  negligence,  contribute  to  its  collision  with  another 
vehicle  whereby  he  is  injured.  But  the  question  before  ns  is  not 
whether  the  plaintiff  in  this  case  was  negligent,  but  whether  the 
assumed  negligence  of  the  owner  and  driver  of  the  bugg}'  she  was 
in  can  be  imputed  to  her.  The  distinction  is  recognized  even  in  the 
case  cited,  and,  although  it  is  there  said  a  person  carried  in  a  pri- 
vate conveyance  is  responsible  for  his  own  negligence,  yet  it  is  dis- 
tinctly held  that  negligence  of  the  driver  can  not  be  imputed  to  him. 
any  more  than  that  of  a  common  carrier  can  be  to  his  passenger. 

It  seems  to  us  there  is  no  authority  or  sound  reason  for  im- 
puting to  the  plaintiff"  in  this  case  the  negligence  of  Henry  Conrad, 


(N.  S.)  597,  where  the  American  authorities  up  to  1906  on  the  whole  subject 
of  the  "imputed  negligence  of  driver  to  passenger"  are  collected. 

^  In  Lundergan  v.  New  York  Central  &  Hudson  River  R.  Co.,  203  Mass. 
460  (1909),  Justice  Sheldon  gave  as  one  reason  for  holding  that  the  plain- 
tiff is  barred  by  the  negligence  of  the  driver,  the  fact  that  the  relation  of 
master  and  servant  existed  between  them,  though  in  fact  the  injured  plain- 
tiff was  the  servant  and  the  negligent  driver  was  the  master. 


CAHILL  V.   CINCINNATI,   ETC.,   R.   CO.  I4I5 

if  he  was  guilty  of  any,  in  the  absence  of  evidence  that  she  vokni- 
tarily  accepted'his  invitation  knowing  him  to  be  incompetent  and 
unreliable,  or  that  she  instead  of  him  did  actually  control  and  direct 
the  movement  of  the  buggy.* 

AMierefore  the  judgment  is  reversed  for  a  new  trial  consistent 
with  this  opinion. 

\-{ccord:  Pyle  v.  Clark,  75  Fed.  644  (1896)  ;  Elyton  Land  Co.  v.  Mingca, 
89  \la  521  (1889)-  Hot  Springs  St.  R.  Co.  v.  Hildreth,  72  Ark.  572  (1904)  ; 
Colorado  &  So.  R.  Co.  v.  Thomas,  2,2,  Colo.  517  (1905)  ;  Roach  v.  Western  & 
It!  R.  Co.,  93  Ga.  785  (1894)  ;  Consolidated  Ice  Machine  Co.  v.  Keifer,  134 
in  492  (1890);  Christv  v.  Elliott,  216  111.  31  (1905);  Knightstown  v.  Miis- 
gr'ove  116  Ind.  121  (1888)  ;  Xesbit  v.  Garner,  75  Iowa  314  (1888)  ;  Leaven- 
worth v.  Hatch,  57  Kans.  57  (1896)  ;  State  of  Maine  v.  Boston  &  M.  R.  R.  Co., 
80  Maine  430  (1888)  ;  Shulta  v.  Old  Colony  St.  R.  Co.,  193  Mass.  309  (1906)  ; 
Koplitz  V.  St.  Paul,  86  Minn.  2>7Z  (1902)  ;  Marsh  v.  Kansas  City  So.  R.  Co., 
104  Mo  App.  577  (1904)  ;  Noves  v.  Boscaiuen,  64  N.  H.  361  (1887)  ;  Noonan 
V.  Consolidated  Trac.  R.  Co.,  64  N.  J.  L.  579  (1900)  ;  Masterson  v.  New  York 
Central  &  H.  R.  R.  Co.,  84  N.  Y.  247  (1881)  ;  Brickell  v.  New  York  C.  & 
H  R  R  Co.,  120  N.  Y.  290  (1890)  ;  Street  R.  Co.  v.  Eadie,  43  Ohio  St.  91 
(1885)  ;  Carlisle  v.  Brisbane,  113  Pa.  St.  544  (1886)  ;  Carr  v.  Easton,  142  Pa. 
St  139  (1891);  Wilson  v.  Nezv  York,  N.  H.  &  H.  R.  Co.,  18  R.  I.  589 
(1894)  ;  Galveston,  H.  &  San  Antonio  R.  Co.  v.  Kutac,  72  Tex.  643  (1889). 

In  Michigan  an  adult  who  voluntarily  enters  a  private  vehicle  is  so  far 
identified  with  the  driver  as  to  be  barred  by  his  contributory  negligence. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274  (1872)  ;  Mullen  v.  City 
of  Owosso,  100  Mich.  103  (1894),  though  an  infant  not  sui  juris  is  not, 
Hempel  v.  Detroit,  G.  R.  &  W.  R.  Co.,  138  Mich.  1  (1904)  ;  nor  is  a  passen- 
ger identified  with  those  in  charge  of  the  vehicle  of  his  common  carrier.  In 
Wisconsin  and  Montana,  a  guest  in  a  private  conveyance  is  so  identified  with 
driver,  Prideaux  v.  Mineral  Point,  43  Wis.  513  (1878)  ;  Lightfoot  v.  Winne- 
bago Trac.  Co.,  123  Wis.  479  (1905);  Whittaker  v.  Helena,  14  Mont.  124 
(1894),  though  there  are  intimations  in  Prideaux  v.  Mineral  Point  which  is 
quoted  and  followed  in  Whittaker  v.  Helena,  that  no  such  identification  exists 
between  a  passenger  and  the  servants  and  agents  of  a  common  carrier.  _ 

It  is  generallv  held  that  the  guest  is  no  more  barred  by  the  contributory 
negligence  of  a  driver  who  is  the  husband,  son  or  other  relative  of  such 
guest  than  if  he  were  not  so  related,  Louisville,  N.  A.  &  C.  R.  Co.  v.  Creek. 
130  Ind.  139  (1891);  Reading  v.  Telfer.  57  Kans.  578  (1897);  Whitman  v. 
Fisher.  98  Maine  575  (1904)  ;  Teal  v.  St.  Paul  City  R.  Co.,  96  Minn.  379 
(1905)  ;  Munger  v.  Sedalia,  66  iSIo.  App.  629  (1896)  ;  Hajsck  v.  Chicago,  B. 
&  Q.  R  Co.,  68  Xebr.  539  (1903)  ;  Hoag  v.  Neiv  York  C.  &  H.  R.  R.  Co., 
Ill  N.  Y.  199  (1888)  :  Davis  v.  Guamieri,  45  Ohio  St.  470  (1887)  ;  Buckler 
y.  Newman,  116  111.  App.  546  (1904),  woman  driving  with  minor  son,  see 
Watson  V.  Wabash,  St.  L.  &  Pac.  R.  R..  66  Iowa  164  (1885)  ;  Philadelphia. 
W.  &.  B.  R.  Co.  V.  Hogeland.  66  Md.  149  (1886);  Cons.  Trac.  Co.  v.  Bchr. 
59  N.  J.  L.  477  (1896),  and  Duval  v.  Atlantic  Coast  Line,  134  N.  Car.  331 
(1904),  daughters  driven  bv' their  fathers;  Philadelphia,  W.  &  B.  R.  Co.  v. 
Hogeland.  66  Md.  149  (1886)  ;  Petersen  v.  St.  Louis  Transit  Co.,  199  Mo.  331 
(1906).  uncle  and  nephew  of  sixteen.  As  to  the  efifect  of  negligence  of  a 
father  driving  his  minor  child  in  those  jurisdictions  which  hold  that  the  chilcl, 
being  incapable  of  caring  for  itself,  is  barred  by  the  negligence  of  those  m 
charge  of  it,  compare  Hennessey  v.  Brooklyn  City  R.  Co.,  6  (N.  Y.)  App.  Div. 
206  (1896)  with  Delaware.  L.  &  W.  R.  Co.  v.  Devore,  114  Fed.  155  (52  C.  C. 
A.  77  1902),  and  see  Peabodv  v.  Haverhill.  G.  &  D.  St.  R.  Co.,  200  Mass. 
277  (1908). 

On  the  other  hand  a  husband's  negligence  is  held  in  some  cases  to  defeat 
the  wife's  action  aeainst  a  third  party  whose  negligence  concurs  with  it  to 
cause  her  iniuries.  ^  In  ^icPaddcnv^^^ScuitaA^^  Cal. 

464  (1891)  and  PennsxlzKuTiTnCTo.yrGooJFnougK  NrrTr577Tl893),  the 
reason  given  was  the  husband's  interest  in  the  wife's  right  of  action^the  ne- 
cessity of  his  joinder  therein  and  his  right  to  the  judgment  recosiered.^  Jn_ 


v^l 


I416  COTTOX  Z'.  WILLMAR,  ETC.^  R.  CO. 

COTTON  V.  WILL:^IAR  &  SIOUX  FALLS  RY.  CO. 

Supreme  Court  of  Minnesota,  1906.     99  Minn.  366. 

Action  to  recover  for  personal  injuries. 

This  appeal  is  brought  from  an  order  of  the  district  court  de- 
nying- a  motion  for  judgment  notwithstanding  the  verdict  rendered 
in  favor  of  the  plaintiff  (or  for  a  new  trial). 

Elliott^  J.  On  the  evening  of  December  21,  1905,  the  plain- 
tiff" Cotton  engaged  from  a  livery  stable,  a  single  seated,  two  horse 
buggy  and  a  driver  to  take  him  from  Bell's  Rapids,  South  Dakota, 
to  Jasper,  Minnesota.  The  driver  was  nineteen  years  of  age  and 
was  experienced  and  was  familiar  with  the  route.  By  the  time 
they  reached  their  destination  it  was  dark  and  the  street  lamps  were 
lighted.  The  street  by  which  they  entered  the  village  crossed  at 
right  angles  with  the  defendants'  tracks.  When  the  team  was  be- 
tween fifty  and  seventy  rods  from  the  track  both  driver  and  plain- 
tiff heard  the  whistle  of  a  locomotive.  They  continued  on  at  a  brisk 
pace  until  they  reached  a  point  about  a  hundred  feet  from  the  track 
where  the  team  was  brought  to  a  walk  and  the  plaintiff"  got  out 
and  listened  for  the  train,  as  di^  also  the  driver.  It  does  not  ap- 
pear that  the  driver  saw  anything  or  made  any  remark.  The  plain- 
tiff saw  a  light  some  six  hundred  feet  up  the  track  to  the  north 
and  supposed  it  to  be  the  locomotive  which  had  whistled  and  said 
''There  is  the  headlight."  Assuming  apparently  that  they  had  thus 
ample  time  to  pass  over  the  crossing  before  the  train  would  reach 
it,  both  parties  settled  back  in  their  seats  and  the  driver  whipped 
up  the  horses  and  drove  rapidly  upon  the  track.  They  were  there 
struck  by  a  train  which  came  from  the  south  and  which  must  have 
been  hidden  by  a  station  building  at  the  time  when  the  plaintiff' 
and  driver  looked  for  the  train.  The  respondent  sustained  injuries 
for  which  he  recovered  a  verdict  for  $5,000.  This  appeal  is  from 
an  order  denying  a  motion  by  the  defendant  for  judgment  notwith- 
standing the  verdict  (or  for  a  new  trial). 

The  American  courts  have  very  generally  declined  to  approve 
the  doctrine  of  Thorogood  v.  Bryan,  8  M.  G.  &  S.  115,  but  have 
not  been  able  to  agree  upon  the  extent  of  the  duty  which  rests 
upon  a  person  who  rides  in  a  vehicle  which  is  driven  by  a  person 
over  whom  he  has  no  direct  control.  Bennett  v.  New  Jersey,  36  N. 
J.  L.  225,  13  Am.  Rep.  435 ;  Nezv  York  v.  Steinbrenner,  47  N.  J.  L. 

Joliet  V.  Seward,  86  111.  402  (1877)  and  Vahn  v.  Ottunmv,  60  Iowa  429  (1883), 
as  explained  in  Nesbit  v.  Garner,  75  Iowa  314  (1888) — but  see  Willfong  v. 
Omaha  &  St.  L.  R.  Co.,  116  Iowa  548  (1902) — the  reason  given  was  that  the 
wife  is.  by  virtue  of  the  marital  relation,  under  the  husband's  care,  while  in 
Carlisle  v.  Sheldon,  38  Vt.  440  (1866)  the  rule  in  Thorogood  v.  5n'a«,  which  at 
that  time  was  accepted  bj'  the  court,  was  liela  to  apply  none  the  less  because 
the  driver  was  her  husband. 

In  Cantos  v.  Jamison,  81  S.  Car.  488  (1908).  it  was  held  that  a  lessee 
was  not  barred  from  recovery  for  injuries  to  the  property  leased,  l)y  the 
contributory  negligence  of  his  lessor. 


COTTON  v.  WILLMAR,  ETC.,  R.  CO.  I417 

i5i,  54  Am.  Rep.  126;  Beckc  v.  Missouri,  102  ]Mo.  544,  548,  13  S.-W. 
1053,  9  L.  R.  A.  157. 

One  group  of  cases  charges  the  passenger  with  the  absohilc 
(hity  of  keeping  a  lookout  for  his  own  safety,  and  does  not  permit 
him  to  trust  to  the  care  of  the  driver/  while  another  allows  him 
to  rely  upon  a  driver,  whom  he  believes  to  be  careful  and  com- 
petent, without  being  subject  to  the  implication  of  negligence.  2 
Thompson,  Neg..§  1621,  and  cases  there  cited.  But  the  rule  which 
has  met  with  general  approval  in  the  more  recent  cases  makes  the 
passenger  responsible  only  for  his  personal  negligence,  and  leaves 
it  to  the  jury  to  determine  whether,  under  the  circumstances,  he 
was  justified  in  trusting  his  safety  to  the  care  of  the  driver  and 
not  looking  and  listening  for  himself.  The  negligence  of  the  driver 
is  thus  not  imputed  to  the  guest  or  passenger,  but  the  circumstances 
may  be  such  as  to  make  it  the  duty  of  the  passenger  to  look  and 
listen  and  attempt  to  control  the  driver  for  his  own  protection.  The 
passenger  is  thus  held  responsible  for  his  own  negligence  but  not 
for  the  negligence  of  the  driver.     He  must  exercise  due  care  and 


*  Many  jurisdictions  hold  that  one,  being  driven  gratuitously  or  for 
hire  in  a  vehicle  (other  than  that  of  a  common  carrier — when  he  may  rely 
upon  the  vigilance  and  care  of  those  employed  to  operate  it.  O'Toole  v.  Pitts- 
burgh &■  L.  E.  R.  Co.,  158  Pa.  St.  99  (1893) — must,  unless  his  position  in  the 
vehicle  absolutely  prohibits  it — as  in  Sliidcr  v.  St.  Louis  Transit  Co.,  189  Mo. 
107  (1905) — keep  a  lookout  for  expectable  dangers  and  must  warn  the  driver 
thereof  and  insist  upojx  his  using  due  care  to  avoid  them,  stop  and  allow  him, 
the  plaintiff,  to  get  out,  Dean  v.  Pennsylvaifia  R.  Co.,  129  Pa.  St.  514  (1889), 
plaintiff  knew  that  the  vehicle  was  approaching  a  level  railway  crossing  but 
sat  with  his  back  to  the  driver  and  did  not  warn  the  driver  nor  request  him 
to  stop  and  look  and  listen  for  the  approach  of  a  train  which  he  knew  to 
be  about  due  to  pass;  Drydcn  v.  Pennsylvania  R.  Co.,  211  Pa.  St.  620  (1905)  ; 
Colorado,  etc.,  R.  Co.  v.  Thomas,  33  Colo.  517  (1905)  ;  Lake  Shore  &  M.  S. 
R.  Co.  v.  Boyts,  16  Ind.  App.  640  (1901)  ;  Holden  v.  Missouri  R.  Co.,  \77  .Mo. 
456  (1903);  Hajsek  v.  Chicago,  B.  &  Q.  R.  Co.,  5  Nebr.  (unofificial)  67 
(1903),  97  N.  W.  327;  Brickell  v.  New  York  Cent.  &  H.  R.  R.  Co..  120  N.  Y. 
290  (1890)  ;  Galveston,  Harrisburg  &  San  Antonio  R.  Co.  v.  Kutac,  72  Tex. 
643  (1889)  ;  Griffith  v.  Baltimore  &  Ohio  R.  Co.,  44  Fed.  574  (1890),  affirmed 
159  U.  S.  603  (1895). 

In  all  of  these  cases  the  plaintiff  had  an  opportunity  and  power  equal 
to  that  of  the  driver  to  observe  and  avoid  the  peril  which  injured  him.  In 
Limdcrgan  v.  New  York  etc.  R.  R.,  203  Mass.  460  (1909),  the  doctrine  seems 
to  be  carried  to  its  extreme  as  the  plaintiff  and  the  driver  arranged  to  look 
each  in  one  direction  along  the  double  tracks  of  the  railway  which  they  were 
about  to  cross,  a  procedure  which,  while  constituting  on  the  part  of  each  "a 
voluntary  surrender  of  the  other  of  all  care  against  all  danger  coming  from 
the  side  for  which  the  other  made  himself  responsible,"  would  seem  to  be  one 
well  calculated  to  insure  the  discovery  of  any  train  approaching  in  either 
direction. 

In  some  of  the  Massachusetts  cases  it  is  held  that  when  the  passenger 
or  guest  trusts  to  the  driver  the  sole  care  and  management  of  the  ve- 
hicle and  relies  entirely  on  such  care,  Murray  v.  Boston  Ice  Co.,  180  Mass. 
165  (1901),  or  there  is  on  his  part  a  "voluntary,  unconstrained  and  non- 
contractual surrender  of  all  care  for  himself  to  the  caution  of  the  driver". 
Shulta  V.  Old  Colonv  St.  R.  Co.,  193  Mass.  309  (1907)  323;  Yarnold  v. 
Bowers,  186  Mass.  396  (1904),  Lundergan  v.  New  York  Cent.  &  H.  R.  R. 
Co.,  203  Mass.  460  (1909),  he  is  barred  by  the  driver's  negligence. 


I418  COTTON  V.  WILLMAR,  ETC.,  R.  CO. 

caution,  and,  if  his  negligence  contributes  approximately  to  the  acci- 
dent, he  can  not  recover  damages. - 

In  Illinois  v.  McLcod,  78  Miss,  334,  it  was  said  that,  where  the 
danger  is  apparent,  the  passenger  is  chargeable  with  the  duty  of 
taking  some  action  to  control  the  conduct  of  the  driver.^  In  Tozmi- 
ship  V.  Anderson,  114  Pa.  St.  643;  and  Dean  v.  Pennsylvania,  129 
Pa.  St.  514,  it  was  held  that  where  the  danger  is  obvious  or  the 
passenger  has  knowledge  of  its  existence,  he  is  chargeable  with 
negligence.  In  Dryden  v.  Pennsylvania,  211  Pa.  St.  620,  it  was  said 
that  the  immunity  of  the  passenger  "is  not  absolute  to  the  extent 
of  excusing  reasonable  caution  in  the  face  of  patent  danger."  A 
passenger  certainly  would  be  negligent  if  he  relied  on  a  driver  who 
was  known  to  be  intoxicated  or  otherwise  incompetent.  Roach  v. 
Western,  93  Ga.  785;  Meenagh  v.  Buckmaster,  26  App,  Div.  451.'* 
Many  other  cases  might  be  cited  to  illustrate  the  rule  that  a  guest 
or  passenger  riding  in  a  vehicle  with  a  driver,  over  whose  conduct 
he  has  no  rightful  control,  is  required,  nevertheless,  to  exercise 
reasonable  care  for  his  own  safety. 

In  Howe  v.  Minneapolis,  St.  P.  &  Sault  Ste.  M.  Ry.  Co.,  62 
Minn.  71,  the  court  said:  "We  think  that  it  would  hardly  occur  to 
a  man  of  ordinary  prudence  when  riding  as  a  passenger  with  a 
competent  driver,  whom  he  had  no  reason  to  suppose  was  neglect- 
ing his  duty,  that  he  was  required  when  approaching  a  railway 
crossing  to  exercise  the  same  degree  of  vigilance  in  looking  and 
listening  for  approaching  trains  that  he  would  if  he  himself  had 
the  control  and  management  of  the  team,  and  our  conclusion  is  that 
a  court  can  not  hold,  as  a  matter  of  law,  that  a  passenger  having 


'Citing  "West  Chicago  St.  R.  Co.  v.  Piper,  165  111.  325,  46  N.  E.  186 
Missouri,  K.  &  T.  R.  v.  Bussev,  66  Kans.  735,  71  Pac.  261 ;  Whitman  v, 
Fisher,  98  Maine  575,  57  Atl.  895;  Indianapolis  St.  R.  Co.  v.  Johnson,  163 
Ind.  518,  72  N.  E.  571 ;  and  cases  collected  in  a  note  to  Colorado  &  S.  R.  Co 
V.  Thomas  (33  Colo.  517,  81  Pac.  801,  70  L.  R.  A.  681),  3  Am.  &  Eng.  Ann 
Cas.  703." 

See  also,  Chadhourne  v.  Springfield  St.  R.  Co.,  199  Mass.  574   (1908) 
Carr  v.  Easton,  142  Pa.  St.  139  (1891)  ;  Walsh  v.  Altoona  &  L.  V.  Elcc.  R 
Co.,  232  Pa.  St.  479  (1911)  ;  Wachsmith  v.  Baltimore  &  Ohio  R.  Co.,  233  Pa 
St.  465  (1912). 

^  Where  the  plaintiff  knows  of  the  danger  as  fully  as  the  driver  and 
without  protest  allows  him  to  encounter  it,  he  is  taken  to  be  guilty  of  personal 
negligence  or,  perhaps  more  exactly,  to  assume  the  risk  of  injury  from  the 
danger  which  thus  he  joins  in  voluntarily  encountering.  Township  of  Cres- 
cent V.  Anderson,  114  Pa.  St.  643  (1886)  ;  Kiinkle  v.  Lancaster  Countv,  219 
Pa.  St.  52  (1908)  ;  Whitman  v.  Fisher,  98  Maine  575  (1904)  ;  Bush  v.  Union 
Pacific  R.  Co.,  62  Kans.  709  (1901).  In  Thompson  v.  Pennsylvania  R.  Co., 
215  Pa.  St.  113  (1906),  a  member  of  the  crew  of  a  fire  engine,  who  knew 
that  it  was  the  custom  of  the  driver  of  such  engines  not  to  stop  and  look 
and  listen  when  approaching  railway  crossings,  was  held  to  have  assumed 
the  risk  of  being  run  over  by  a  train  negligently  operated  thereon. 

*  Accord:  Hcrshev  v.  Mill  Creek  Township.  9  Atl.  452  (Pa.  1887); 
Brannen  v.  Kokomo  Road  Co.,  115  Ind.  115  (1888)  ;  Bresee  v.  Los  Angeles 
Traction  Co.,  85  Pac.  152  (Cal.  1906).  So  where  the  plaintiff  knows_  that 
the  driver  is  actually  at  the  time  driving  recklessly,  Vincennes  v.  Tliiiis,  28 
Ind.  App.  523  (1902),  or  knows  him  to  be  a  habitually  reckless  and  careless 
driver,  Bresee  v.  Los  Angeles  Trac.  Co.,  85  Pac.  152  (Cal.  1906).  See  also. 
Thompson  v.  Penna.  R.  Co.,  215  Pa.  St.  52  (1908),  note  3. 


I 


COTTON  V.  WILLMAK,  KTC,  R.  CO.  I4I9 

no  control  over  the  team  or  its  management  is  guilty  of  negligence 
merely  because  he  does  not  exercise  the  same  degree  of  vigilance 
ni  looking  and  listening  on  approaching  a  railway  crossing  which 
is  required  of  the  one  having  the  control  and  management  of  the 
team.  It  is  a  matter  of  common  knowledge  that,  under  ordinary 
circumstances,  passengers  do  largely  relv  on  the  driver,  who  has 
exclusive  control  and  management  of  the  team,  exercising  the  re- 
quired care  when  approaching  a  railway  crossing,  and  we  do  not 
think  that  the  courts  are  justified  in  adopting  a  hard  and  fast  rule 
that  they  are  guilty  of  negligence  in  doing  so.  Every  case  must 
depend  largely  upon  its  own  particular  facts. "^ 

The  question  of  the  respondent's  contributory  negligence  was 
thus  for  the  jury  to  determine  unless  the  evidence  was  such  as  to 
require  the  court  to  determine  it  as  a  question  of  law. 

The  appellant  contends  that  the  court  erroneously  instructed 
the  jury  as  to  the  relation  which  existed  between  the  respondent 
and  the  driver.  The  rule  that  the  driver's  negligence  is  not  im- 
putable to  a  person  who  is  being  carried  in  a  vehicle  is  only  applica- 
ble in  cases  where  the  relation  of  master  and  servant  or  principal 
and  agent  does  not  exist.  The  negligence  of  a  person's  own  driver 
is  imputable  to  him.  Markozcita  v.  Metropolitan,  i86  Mo.  350; 
Read  v.  City,  115  Ga.  366.  So  where  the  parties  are  engaged  in  a 
joint  enterprise  or  in  a  common  employment  the  negligence  of  one 
is  imputable  to  all.  Boyden  v.  Fitchburg,  72  V^t.  89 ;  Donnelly  v. 
Brooklyn,  109  N.  Y.  16.'^  In  Cunningham  v.  City  of  Thief  River 
Falls,  84  Minn.  27,  the  court  said:  "Uarties  can  not  be  said  to  be 
engaged  in  a  joint  enterprise,  within  the  meaning  of  the  law  of 
negligence,  unless  there  be  a  community  of  interest  in  the  objects 
or  purposes  of  the  undertaking,  and  an  equal  right  to  direct  and 
govern  the  movements  and  conduct  of  each  other  with  respect 
thereto.  Each  must  have  some  voice  and  right  to  be  heard  in  its 
control  and  management."^ 

These  parties  were  not  engaged  in  a  joint  enterprise,  neither 


"  Compare  the  language  of  Peters,  C.  J.,  in  State  of  Maine  v.  Boston  & 
Maine  R.  Co..  80  Maine  430  (1888),  and  Marshall,  J.,  in  Pyle  v.  ClarL-,  75 
Fed.  644  (1896). 

*  The  decision  of  this  case  can  only  be  supported  on  the  ground  that  the 
plaintiff  having  an  opportunity  to  discover  the  danger  equal  to  that  of  the 
driver,  was  in  personal  fault  in  not  availing  himself  thereof  and  in  so  far  as 
the  decision  is  based  on  the  ground  that  two  servants  of  the  same  master 
in  the  prosecution  of  his  business  are  so  engaged  in  a  common  enterprise  that 
the  negligence  of  one  is  to  be  imputed  to  the  other,  the  case,  though  fol- 
lowed in  Schron  v.  Staten  Island  R.  Co.,  16  App.  Div.  Ill  (N.  Y.  1897),  and 
Cass  V.  Third  Ave.  R.  Co.,  20  App.  Div.  591  (N.  Y.  1897),  is  clearly  against 
the  overwhelming  weight  of  authority,  including  A^czv  York,  McCormack  v. 
Nassau  Elec.  R.  Co..  18  App.  Div.  333  (N.  Y.  1897).  John  Sfyrv  Lumber  Co. 
V.  Duqqan,  182  111.  218  (1899).  McKernan  v.  Detroit  Citizens  St.  R.  Co.,  138 
Mich.  519  (1904).  See  also,  Pauhnier  v.  Eric  R.  Co.,  34  N.  J.  L.  151  (1870), 
given  in  the  appendix,  and  cases  cited  in  the  note  thereto. 

'Accord:  Koplitz  v.  St.  Paul,  86  Minn.  373  (1902),  with  which  com- 
pare Shindelus  v.  5"^  Paul  Cifv  R.  Co..  80  Minn.  364  (1900)  :  McBride  v. 
Des  Moines  City  R.  Co..  109  N.  W.  618  (Supreme  Court  of  Iowa,  Nov.  13, 
1906),  holding  that  the  crew  of  a  hose  carriage  of  a  fire  department  were 
not  engaged  in  a  common  enterprise  with  the  driver;   Consolidated   Trac. 


I420  NEW  YORK,  ETC.,  R.   CO.  Z'.   NEW  JERSEY  ELEC.  CO. 

did  the  relation  of  principal  and  agent  or  master  and  servant  exist 
between  them.  The  respondent  had  contracted  to  be  conveyed  to 
Jasper  for  an  agreed  consideration.  He  was  a  passenger  in  a  quasi 
public  conveyance,  and  had  no  rightful  control  over  the  actions  of 
the  driver.  Neither  party  had  the  right  to  direct  the  movements 
of  the  other.  The  respondent  asked  the  liveryman  at  Bell  Rapids 
what  he  would  charge  to  take  him  to  Jasper,  and  was  informed  that 
he  would  do  it  for  $2.50.  Later  in  the  day  he  telephoned  for  the 
team  and  the  liveryman  sent  it  with  Nelson  as  driver.  The  driver 
was  the  servant  of  the  liveryman.  This  is  all  the  evidence  as  to 
the  contract  of  hiring,  and  it  fails  to  show  any  relationship  which 
would  charge  the  respondent  with  responsibility  for  the  actions  of 
the  driver.  In  Randolph  v.  O'Riordon,  155  Mass.  331,  it  was  held 
that  the  relationship  of  master  and  servant  was  not  created  by  a 
mere  contract  for  conveyance  in  a  livery  team. 

The  order  from  which  the  appeal  is  taken  is  therefore  affirmed. 


i 


NEW  YORK,  LAKE  ERIE  &  WESTERN  R.  R.  CO.  v.  NEW 
JERSEY  ELECTRIC  CO. 

Supreme  Court  of  New  Jersey,  1897.     60  N.  J.  L.  338. 

LipPiNCOTT,  J.  In  this  case  the  action  is  brought  by  the  New 
York,  Lake  Erie  and  Western  Railroad  Company  by  its  receiver 
against  the  defendant  to  recover  damages  sustained  by  the  locomo- 
tive engine  and  cars  of  the  plaintiff,  in  a  collision  between  the  lo- 
comotive engine  and  an  electric  car  of  the  defendant  company,  at 
a  crossing  over  a  public  highway,  at  Singac,  in  Passaic  county,  on 
September  2d,  1895.  The  locomotive  and  some  of  the  cars  of  the 
train  belonged  to  the  plaintiff  company,  and  by  it  had  been  hired 
by  the  day,  and  from  day  to  day,  for  vise,  to  the  New  York  and 
Greenwood  Lake  Railway  Company,  which  latter  company  was, 
with  its  own  engineer,  fireman  and  employes,  running  the  same  over 
and  upon  its  own  roadbed  and  rails  at  such  highway  crossing  at 
the  time  and  place  of  collision. 

The  defendant  was  a  street  electric  railway  company,  running 
along  and  upon  the  Little  Falls  road,  which  is  a  public  highway, 
from  Paterson  to  Passaic  and  Rutherford.  The  tracks  of  the  New 
York  and  Greenwood  Lake  railway  cross  this  highway  at  Singac. 
At  the  same  point  the  electric  car  tracks  of  the  defendant  company 
cross  the  tracks  of  the  plaintiff  railroad  company,  and  the  collision 
between  the  electric  car  and  the  locomotive,  whilst  both  were  in 
the  act  of  making  this  crossing,  caused  the  damage  to  the  locomo- 
tive and  cars  of  the  plaintiff'. 

The  trial  judge  directed  the  jury  to  find  a  special  verdict.  The 
jury  by  their  special  verdict  found  negligence  of  the  employes  of 

Co.  v.  Hoimark,  60  N.  J.  L.  456  (1897)  :  Reich  v.  Peck.  S3  Hun  214  (N.  Y. 
1894),  with  which  compare  Beck  v.  East  Rker  Ferrv  Co..  6  Rob.  82  (N.  Y. 
1868)  ;  and  see  State  v.  Boston  Sr  Maine  R.  Co.,  80  ]\Iaine  430  (1888),  with 
which  compare  Boyden  v.  Fitchburg  R.  Co.,  72  Vt.  89  (1899). 


NEW  YORK,  ETC.,  R.   CO.  V.   NEW  JERSEY  ELEC.   CO.  1421 

the  defendant  company  causing  the  accident ;  also  that  the  negli- 
gence of  the  employes  of  the  New  York  and  Greenwood  Lake  Rail- 
way company  contributed  thereto ;  and  also  that  the  plaintiff  com- 
pany had  suffered  damage  to  the  amount  of  $i,475- 

On  this  verdict  the  postca  was  framed,  and  the  motion  now  is 
for  judgment  thereon. 

The  right  of  the  plaintiff'  to  recover  against  the  defendant  is 
denied  on  the  ground,  first,  that  under  the  verdict  finding  that  the 
contributory  negligence  of  the  New  York  and  Greenwood  Lake 
Railway  Company  having  concurred  and  co-operated  with  the  negli- 
gence of  the  defendant  in  causing  the  injury,  that  therefore  the  ac- 
tion should  be  alone  against  that  company,  and  that  for  such  injury 
action  only  can  be  had  against  the  New  York  and  Greenwood  Lake 
Railway  Company,  which  was  the  bailee  of  the  plaintiff  of  the  lo- 
comotive and  cars,  and  that  it  can  not  be  maintained  against  the  de- 
fendant, although  its  negligence  contributed  to  the  injury. 

This  contention  involves  the  question  of  the  right  of  the  bailor 
against  a  third  party  as  wrongdoer  in  relation  to  the  subject-matter 
of  a  bailment  for  hire  for  use. 

It  would  seem  to  be  clear  that,  under  general  principles,  a 
bailor  can  maintain  an  action  for  injury  to  the  property  bailed,  at 
the  hands  of  a  third  party,  who  is  a  wrongdoer  in  relation  thereto, 
especially  wherever  the  injury  is  of  a  permanent  character.^  There- 
fore, the  contention  of  the  defendant  that  the  right  of  action  was 
alone  against  the  bailee  must  fail. 

But  the  defendant  distinctly  contends  that  the  negligence  of 
the  bailee  or  its  servants  in  the  operation  of  this  locomotive  and 
train  of  cars  by  reason  of  this  bailment,  contributing  to  the  injury, 
is  imputable  to  the  bailor  and  prevents  a  recovery  on  the  part  of 
the  bailor  against  the  defendant  as  a  third  party,  who  is  a  joint 


*  "There  is  no  question  but  that  for  the  injury  to  the  actual  possession 
of  the  bailee,  action  against  a  third  party  will  lie  only  at  the  suit  of  the 
bailee,  and  the  general  current  of  authority  appears  to  be  that  the  bailee  can 
include  in  such  suit  damages  for  the  entire  injury  to  the  subject  of  the  bail- 
ment, but  no  case  is  found  which  denies  the  right  of  the  bailor  to  sue  and  re- 
cover for  the  permanent  injury  to  the  property  even  before  the  expiration  of 
the  bailment." 

'The  bailor,  when  he  makes  a  bailment  for  hire,  parts  with  the  right  of 
possession  to  the  chattel,  and  it  has  been  held  that  he  can  not,  during  the 
existence  of  the  bailment,  maintain  an  action  of  trespass  for  its  asportation, 
or  trover  for  its  mere  conversion,  or  replevin  to  recover  back  its  possession, 
against  any  third  person,  but  it  seems  to  be  the  accepted  doctrine,  at  present, 
that  if  any  permanent  injury  be  done  to  the  chattel,  he  maintain  a  special 
action  on  the  case  against  a  third  party  for  injury  done  by  such  third  party 
to  the  reversionary  interest,  and  this  seems  to  be,  both  by  reason  and  au- 
thority, the  rule,  whether  an  action  might  or  might  not  be  maintained  by 
the  bailee  against  such  party  for  trover,  trespass  or  replevin,  to  control  the 
immediate  possession.     Pol.  Torts,  432." 

"A  bailor  need  not  look  alone  to  his  bailee  for  a  wrong  by  a  third  party 
in  connection  with  the  bailee  as  respects  the  contract  of  baihnent.  If  a  bailee 
assumes  to  pledge  or  sell  the  bailed  goods  as  his  own,  such  an  act  amounts 
to  a  conversion  and  the  bailor  may  immediately  bring  an  action  of  trover  or 
replevin  against  the  third  partv  in  whose  possession  the  property  is  found 
Story  Bailm.    (9th  ed.),  §  413." 


1422  NEW  YORK,  ETC.,  R.   CO.  V.   NEW  JERSEY  ELEC.   CO. 

wrongdoer  with  the  bailee.  This  joint  negHgence  by  the  special 
verdict  is  found  to  have  been  the  cause  of  the  collision  and  injury, 
and,  therefore,  the  case  must  be  considered  with  the  fact  of  the  con- 
tributing negligence  of  the  bailee  established. 

It  may  be  deemed  to  be  settled  in  this  state  that  the  employes 
or  servants  of  a  bailee  are  not  the  servants  of  the  bailor  in  any 
such  relation  as  to  make  the  bailor  liable  to  third  parties  for  their 
negligence  or  misconduct  in  relation  to  the  thing  bailed.  As  where 
A  hired  a  coach  and  horses  with  a  driver  from  B,  to  take  his  family 
on  a  particular  journey,  and  in  the  course  of  the  journey,  in  cross- 
ing the  track  of  a  railroad,  the  coach  was  struck  by  a  passing  train 
and  A  was  injured.  In  an  action  by  A  against  the  railroad  com- 
pany for  damages  it  was  held  that  the  relation  of  master  and  servant 
did  not  exist  between  the  plaintiff  and  the  driver,  and  that  the  neg- 
ligence of  the  driver,  co-operating  with  that  of  the  persons  in  charge 
of  the  train  which  caused  the  accident,  was  not  imputable  to  the 
plaintiff  as  contributory  negligence  to  bar  his  action.  It  was  fur- 
ther held  that  for  whatever  purpose  the  negligence  was  invoked, 
whether  as  an  action  for  injury  done  by  the  driver,  or  as  contribu- 
tory negligence  to  bar  the  action  by  the  passenger,  against  the  third 
person  for  an  injury  sustained,  the  negligence  to  be  imputed  to  the 
passenger  must  be  such  as  arises  in  some  manner  from  his  own 
conduct. 

The  negligence  of  the  driver,  without  some  co-operating  neg- 
ligence on  his  part,  can  not  be  imputed  to  the  passenger  in  virtue 
of  the  simple  act  of  hiring,  AVw  York,  Lake  Erie  and  Western 
Railroad  Co.  v.  Steinhrenner,  18  Vroom  161 ;  Bennett  v.  New  Jersey 
Railroad  Co.,  7  Id.  225. 

There  is  no  perceivable  distinction  between  the  case  in  hand 
and  the  cases  last  cited.  Both  rest  upon  a  contract  of  bailment  for 
the  hire  of  a  thing  for  use,  and  although  a  contract  mutually  bene- 
ficial to  each  of  the  parties,  they  are  so  independent  of  each  other 
that  the  negligence  of  one  can  not  be  imputable  to  the  other. 

It  is  only  when  the  contributory  negligence  is  of  such  a  char- 
acter and  the  third  person  is  so  connected  with  the  plaintiff'  that 
an  action  might  be  maintained  against  the  plaintiff  for  damages  for 
the  consequences  of  such  negligence,  then  when  the  plaintiff  brings 
the  action,  that  negligence  is,  in  contemplation  of  law,  the  plaintiff's 
negligence,  and  it  is  justly  imputed  to  him. 

This  relation  does  not  exist  between  the  bailor  and  bailee  un- 
der the  ordinary  contract  of  bailment. 

The  cases  cited  by  the  defendant  in  his  argument  are  mainly 
based  on  the  doctrine  laid  down  in  Thorogood  v.  Bryan,  8  C.  B.  114. 

It  is  sufficient  to  say  that  this  doctrine  (of  Thorogood  v.  Bryan) 
has  been  thoroughly  disapproved  in  this  state  in  the  case  of  New 
York,  Lake  Erie  and  Western  Railroad  Co.  v.  Steinbrenner,  18 
Vroom  161. 

There  is  a  line  of  cases  in  which  the  peculiar  contractual  re- 
lations between  a  shipper  of  goods  and  the  common  carrier  thereof 
locatio  operis  mercium  vchendarnm,  who  is  liable  to  the  shipper 


NEW  YORK,  ETC.,  R.  CO.  V.  NEW  JERSEY  ELEC.  CO.  I423 

against  all  events  except  the  acts  of  God  or  the  public  enemy,  or 
the  natural  wear  and  tear  of  the  article  shipped,  and  responsible 
for  all  the  consequences  of  his  conduct  as  an  insurer  against  loss 
except  from  such  excepted  causes,  which  hold  the  carrier  alone  re- 
sponsible for  injury.  The  shipper,  according  to  such  authorities, 
can  not  recover  against  a  third  party  for  negligence  in  the  care  of 
such  goods  or  injuries  to  them. 

The  distinction  between  the  relation  which  exists  in  law  be- 
tween the  shipper  and  the  common  carrier  of  goods  and  the  bail- 
ment for  hire  of  a  chattel  for  use  is  so  obvious  as  not  to  need 
discussion.  The  carriage  of  goods  is,  by  all  legal  writers,  classed 
as  a  different  contract  of  bailment  having  peculiarities,  and  gov- 
erned by  principles  characteristic  of  the  relation  quite  apart  from 
the  contract  of  bailment  of  chattels  for  hire. 

The  cases  cited  by  the  defendant  are  Vander  Plank  v.  Miller, 
I  Moo.  &  M.  169;  Simpson  v.  Hand,  6  Whart.  311 ;  Transfer  Com- 
pany V.  Kelly,  36  Ohio  St.  86;  Arctic  Fire  Insurance  Co.  v.  Austin, 
69  N.  Y.  470.^  These  cases  are  all  cases  which  arise  under  the 
contract  of  bailment  for  the  carriage  of  goods  and  chattels,  not  by 
a  special,  but  by  a  common  carrier.     *     *     * 

*  *  *  He  is  treated  as  an  insurer  against  all  but  the  ex- 
cepted perils  (Jones  Bailm.  loi),  and  the  shipper  can  not  look  be- 
yond him  for  liability,  and  this  rule  is  said  to  be  grounded  upon 
public  policy.^ 

It  would  seem  that  the  intervention  of  the  negligence  of  the 
bailee  could  not  shield  the  defendant  from  the  injury  caused  by 


^In  Vanderplank  v.  Miller,  the  brief  charge  to  the  jury  by  Lord  Tender- 
ten,  C.  J.,  at  Ni?i  Prius  gave  no  reasons  for  his  statements  that  the  owner  of 
the  goods  could  not  recover  if  his  carrier  was  in  fault.  The  decision  in 
Simpson  V.  Haynd  was  based  on  the  idea  that  it  would  be  improper  to  make 
"one  wrongdoer  responsible  in  case  of  another  for  an  injury  that  both  had 
committed  and  that  it  is  more  just  that  the  carrier  should  answer  to  his 
employer  rather  than  one  in  whom  the  employer  had  imposed  no  confidence." 
The  court  in  Transfer  Co.  v.  Kelley,  sought  to  distinguish  that  case,  one 
where  a  passenger  was  injured  through  the  concurrent  negligence  of  his 
carrier  and  the  defendant,  from  those  which  held  that  the  negligence  of  the 
carrier  is  to  be  imputed  to  the  shipper  of  the  goods  on  the  ground  of  public 
oolicy,  "which  should  not  permit  the  liability  of  the  carrier  to  be  shifted  to 
another  either  with  or  without  the  consent  of  the  owner."  With  this  compare 
Lockhart  v.  Lichtenthaler,  46  Pa.  151  (1863),  in  which  the  court  held  that 
while  a  passenger  in  a  private  conveyance  was  not  barred  by  the  negligence  of 
the  driver,  the  passenger  of  a  common  carrier  was  barred  by  his  carrier's 
negligence,  a  decision  long  since  repudiated  in  Pennsylvania,  see  Cahill  v. 
Railway,  ante.  The  case  of  Arctic  fire  Insurance  Co.  v.  Austen,  was  ex- 
pressly based  upon  the  fact  that  the  carrier  was  "a  bailee  and  quasi  the 
agent  of  the  shipper."  The  New  York  cases  allowing  a  pa.ssenger  to  recover 
notwithstanding  the  negligence  of  the  carrier  were  distinguished  on  the 
ground  that  "there  is  no  bailment  and  no  agency  in  those  cases,  there  is  no 
absolute  obligation  of  the  carrier  to  deliver  his  passengers  safely;  the  car- 
rier can  not  maintain  an  action  for  an  injury  to  his  passengers."  In  that 
case  the  plaintiff  was  the  insurer  of  a  cargo  of  corn  shipped  in  the  canal 
boat  "Parsons." 

Mn  the  case  of  the  Milan,  5  Probate  Division,  Lushington  388  (1861), 
Dr.  Lushington  declining  to  be  bound  by  Thorogood  v.  Bryan,  ht\d  that  the 
owner  of  a  cargo  was  not  barred  by  the  contributory  negligence  of  the 
master  and  crew  of  the  vessel  in  which  his  goods  were  laden.     His  opinion 


1424  WARREN  V.  MANCHESTER  STREET  R.  CO. 

its  own  negligence.  Both  might  have  been  selected  as  joint  tort- 
feasors, or  the  action  could  be  maintained  against  either. 

The  conclusion  reached  is  that  the  plaintiff  had  the  right  to 
sue  either  or  both  these  companies  for  the  injuries  arising  from 
their  negligence  to  the  locomotive  and  cars  of  the  plaintiff,  and  it  is 
not  a  defense  to  the  action  that  the  accident  was  contributed  to  by 
the  negligence  of  the  other.  Each  is  liable  upon  its  own  negligence, 
and  the  negligence  of  the  bailee  is  not  imputable  to  the  plaintiff  as 
a  shield  to  the  defendant  against  recovery.* 

Judgment  must  be  entered  on  postca  for  the  damages  found  by 
the  jury. 


■A 


WARREN  V.  MANCHESTER  STREET  RAILWAY  CO. 
Supreme  Court  of  New  Hampshire,  1900.     70  -V.  H.  352. 


Pike,  J.  The  question  whether  a  parent's  negligence  can  be 
imputed  to  his  child,  so  as  to  bar  a  recovery  by  the  child  against  a 
third  person,  has  been  considered  by  the  courts  of  many  states,  and 
conflicting  conclusions  have  been  reached.  The  question  first  arose 
in  Mai'tfield  v.  Roper,  21  Wend.  615,  where  it  was  decided  in  the 
affirmative.  The  court  said :  "An  infant  is  not  sui  juris.  He  be- 
longs to  another,  to  whom  discretion  in  the  care  of  his  person  is 
exclusively  confided.  That  person  is  keeper  and  agent  for  this  pur- 
pose ;  and  in  respect  to  third  persons,  his  act  must  be  deemed  that 
of  the  infant ;  his  neglect,  the  infant's  neglect."^     This  rule  was 


in  this  case  was  cited  and  approved  by  Lord  Esher  in  the  case  of  the  Ber- 
nina  (see  note  to  Thorogood  v.  Bryan,  ante)  and  by  Lord  Herschell  in  the 
same  case  upon  appeal  in  the  House  of  Lords,  while  in  an  opinion  prepared 
by  Lord  Bramwell  but  not  read,  he  regards  it  as  obvious  that,  if  a  passenger 
may  maintain  an  action  against  a  third  person  notwithstanding  the  negligence 
of  his  carrier  an  owner  of  goods  may  likewise  maintain  an  action,  and  he 
points  out  what  he  regards  as  "a  ludicrous  case  of  a  collision  between  rail- 
ways A.  and  B.,  injury  to  goods  in  each  and  actions  maintainable  by  owners 
of  goods  carried  by  A.  against  B.  and  of  goods  carried  by  B.  against  A.,  wlien 
possibly  neither  had  any  remedy  against  his  own  carrier."  In  Henderson  v. 
Chicago  R.  R.  Co.,  170  111.  App.  616  (1912),  it  was  held  that  where  the  plain- 
tiff's goods  were  injured  in  a  colHsion  between  one  of  the  defendants'  cars 
and  a  wagon  in  which  a  teamster  (who  carried  on  a  regular  business  as  such) 
employed  by  him  was  conveying  them,  tlie  plaintiff  could  recover  though  the 
teamster  and  the  defendant  conductor  were  both  guilty  of  negligence  concur- 
ring to  produce  the  collision. 

*  Accord:  Alabama  Great  Southern  R.  R.  Co.  v.  Clarke,  145  Ala.  459 
(1906)  ;  Ctirrie  v.  Cons.  R.  Co.,  81  Conn.  384  (1908)  ;  Gibson  v.  Bessemer  & 
Lake  Erie  R.  Co.,  2>7  Pa.  Sup.  Ct.  70  (1908),  226  Pa.  St.  198  (1910)  ;  but  see 
Forks  Tozvnship  v.  King,  84  Pa.  230  (1877);  Sea  Ins.  Co.  of  Liverpool  v. 
J'icksburg,  S.  &-  P.  R.  Co.,  159  Fed.  676  (1908);  contra,  Smith  v.  Smith, 
2  Pick.  621  (Mass.  1825);  ///.  Cent.  R.  Co.  v.  Sims,  77  Miss.  325  (1899); 
JVelty  v.  Indianapolis  &  Vincennes  R.  Co.,  105  Ind.  55  (1885),  and  see 
Puterbaugh  v.  Reasor,  9  Ohio  St.  484  (1859). 

^  In  this  case  the  court,  before  discussing  the  effect  of  the  parent's  negli- 
gence in  allowing  the  plaintiff,  a  child  of  two,  to  play  upon  a  country  road, 
where  he  was  run  over  by  the  defendant's  sleigh,  upon  the  plaintiff's  right  to 
recover  for  the  injuries  so  received,  had  intimated  its  opinion  that  the  defend- 


WARREN  v.  MANCHESTER  STREET  R.  CO.  I425 

questioned  in  Vermont  soon  after  its  announcement,  and  has  been 
rejected  quite  generally  elsewhere.  In  Robinson  v.  Cone,  22  \'t. 
213,  224,  Redfield,  J.,  said:  "We  are  satisfied,  that  although  a  child, 
or  idiot,  or  lunatic  may  to  some  extent  have  escaped  into  the  high- 
way through  the  fault  or  negligence  of  his  keeper,  and  so  be  im- 
properly there,  yet  if  he  is  hurt  by  the  negligence  of  the  defendant, 
he  is  not  precluded  from  his  redress."  In  Smith  v.  O'Connor,  48 
Pa.  St.  218,  221,  the  court  said:    "We  are  asked  to  approve  and 


ant  had  exercised  all  the  care  which  the  law  required  and  that  the  case  was 
one  of  mere  unavoidable  accident.  In  discussing  the  effect  of  the  parent's  neg- 
hgence,  the  court  said  in  addition  to  the  language  quoted  above,  "The  child 
has  a  right  to  the  road  for  the  purposes  of  travel,  attended  by  the  proper 
escort.  But  at  the  tender  age  of  two  or  three  years,  and  even  more,  the  in- 
fant can  not  personally  exercise  that  degree  of  discretion,  which  becomes  in- 
stinctive at  an  advanced  age,  and  for  which  the  law  must  make  him  re- 
sponsible, through  others,  if  the  doctrine  of  mutual  care  between  the  parties 
using  the  road  is  to  be  enforced  at  all  in  his  case."  "Suppose  a  hopeless 
lunatic  suffered  to  stray  by  his  committee,  lying  in  the  road  like  a  log,  shall 
the  traveller,  whose  sleigh  unfortunately  strikes  him.  be  made  amenable  in 
damages?  The  neglect  of  the  committee  to  whom  his  custody  is  conlided 
shall  be  imputed  to  him.  It  is  a  mistake  to  suppose  that  because  the  party 
injured  is  incapable  of  personal  discretion,  he  is,  therefore,  above  all  law. 
An  infant  or  lunatic  is  liable  personally  for  wrongs  which  he  commits 
against  the  person  and  property  of  others.  Bullock  v.  Babcock,  3  Wendell, 
391,  394.  And  when  he  complains  of  wrongs  to  himself,  the  defendant  has 
a  right  to  insist  that  he  should  not  have  been  the  heedless  instrument  of  his 
own  injury.  He  can  not,  more  than  any  other,  make  a  profit  of  his  own 
wrong.  Vplenfi  non  fit  injuria.  If  his  proper  agent  and  guardian  has  suf- 
fered him  to  incur  mischief,  it  is  much  more  fit  that  he  should  look  for  re- 
dress to  that  guardian,  than  that  the  latter  should  negligently  allov/  his  ward 
to  be  in  the  way  of  travellers,  and  then  harass  them  in  courts  of  justice,  re- 
covering heaw  verdicts  for  his  own  misconduct." 

As  to  the  intimation,  in  the  opinion  in  Hartficld  v.  Roper,  that  it  would 
work  injustice  to  the  defendant,  if  there  was  not  some  one  whose  contributory 
negligence  would  be  capable  of  excusing  his,  the  defendant's  fault,  so  as  to  re- 
lieve him  from  liability,  see  the  opinion  of  Strong,  J.,  in  Smith  v.  O'Connor, 
48  Pa.  218  (1864),  "Nor  has  a  wrongdoer  defendant  any  reason  to  complain 
that  an  infant  child  is  not  held  responsible  for  his  lack  of  care.  He  is  called 
upon  to  answer  for  his  own  misconduct  but  nothing  more,  alike  when  the 
plaintiff  is  an  infant  as  if  t!ie  plaintiff  is  an  adult.  It  may  be  his  good  fortune 
that  in  the  one  case  the  person  injured  was  also  blameworthy,  but  this  can 
not  detract  from  the  wrong  of  his  own  conduct.  When  the  wrongful  conduct 
of  a  defendant  has  been  established  it  is  not  unjust  to  him  that  he  should  be 
required  to  repair  the  mischief  he  has  done." 

Hartficld  v.  Roper  has  been  followed  in  Massachusetts  in  J  fright  v.  Mai- 
den &  Melrose  R.  Co.,  4  Allen  (86  Mass.)  283  (1862)  ;  Cotter  v.  Lynn  c'r  B. 
R.  Co.,  180  Mass.  145  (1901)  ;  in  California  in  Mceks  v.  Cal.  So.  Pac.  R.  Co., 
52  Cal.  602  (1878)  ;  in  Maine  in  Leslie  v.  Lcidston,  62  Maine  468  (1873)  ;  in 
Wisconsin  in  Parish  v.  Eden,  62  Wis.  272  (1885)  ;  in  Maryland  in  Baltimore 
City  Passenger  R.  Co.  v.  MacDoncll,  43  Md.  534  (1875),  it  is  assurned  that  the 
negligent  custody  will  bar  the  child  even  though  the  actual  point  \yas  not 
necessary  for  decision,  since  the  child  was  guilty  of  no  conduct  negligent  in 
an  adult:  See  also  Kyne  v.  IVilmington  &  N.  R.  Co.,  14  Atl.  922  (Del.  1888). 
The  earlier  cases  in  Indiana,  Kansas  and  Minnesota  followed  Hartficld 
v.  Roper,  Atchison,  Topeka  &  S.  F.  R.  Co.  v.  Smith,  28  Kans.  541  (1882)  ; 
Pittsburgh,  Ft.  Waxnc  &  Chicago  R.  Co.  v.  I'ining.  27  Ind.  513  (1867)  ; 
Fitzgerald  v.  5"^  P.,'M.  &  M.  R.  Co.,  29  Minn.  336  (1882). 

Even  in  these  jurisdictions  however,  the  rule  only  applies  to  children  so 
young  as  to  be  incapable  of  caring  for  themselves  and  only  where  the  parent 
"having  been  negligent  in  the  custody  of  the  child,  the  child  being  thus  exposed 


1426  WARREN  V.  MANCHESTER  STREET  R.  CO. 

apply  the  doctrine  held  by  the  Xew  York  courts,  and  first  enunciated 
in  Hartfield  v.  Roper,  21  Wend.  615.  There  it  is  ruled  that  the 
negligence  or  imprudence  of  the  parents  or  guardians  in  allowing 
a  child  of  tender  age  to  be  exposed  to  injury  in  a  highway  fur- 
nishes the  same  answer  to  an  action  by  the  child  as  the  negligence 
or  other  fault  of  an  adult  plaintiff  would  in  a  similar  case.  The 
negligence  of  the  parents  or  guardians  is  imputed  to  the  child,  and 
hence,  unless  the  infant  plaintiff  has  exercised  that  care  and  pru- 
dence which  are  demanded  of  an  adult,  unless  equally  guiltless  of 
any  negligence  concurring  with  a  wrongful  act  of  a  defendant  in 
causing  an  injury,  no  action  can  be  sustained.  This  is  compelling 
the  child  to  the  exercise,  not  of  its  own,  but  of  its  parents'  discre- 
tion. It  is  holding  it  responsible  for  the  ordinary  care  of  adults. 
In  our  opinion,  the  rule  thus  broadly  stated  does  not  rest  upon  sound 
reason."  In  Belief ontaine  etc.  R.  R.  v.  Snyder,  18  Ohio  St.  399, 
409,  it  was  said :  'Tt  is  the  old  doctrine  of  the  father  eating  grapes, 
and  the  child's  teeth  being  set  on  edge.  The  strong  objection  to  it 
is  its  palpable  injustice  to  the  infant.  Can  it  be  true,  and  is  such  the 
law,  that  if  only  one  party  offends  against  an  infant  he  has  his  ac- 
tion, but  that  if  two  oft'end  against  him  their  faults  neutralize  each 
other,  and  he  is  without  remedy?"  In  Neivman  v.  Railroad,  52  X. 
J.  Law  446,  449,  450,  Beasley,  C.  J.,  said :  "This  doctrine  of  the 
imputability  of  the  misfeasance  of  the  keeper  of  a  child  to  the  child 
itself  is  deemed  to  be  a  pure  interpolation  into  the  law,  for  until 
the  case  under  criticism  it  was  absolutely  unknown ;  nor  is  it  sus- 
tained by  legal  analogies.     Infants  have  always  been  the  particular 

to  danger  has  been  guilty  of  conduct  which  if  done  by  an  adult  would  be  negli- 
gent in  him,  or  which  a  child  under  proper  custody  would  not  be  allowed  to  do. 
McGarry  v.  Loomis,  63  N.  Y.  104  (1875)  ;  Ihl  v.  Fortv-second  St.  &  Grand 
St.  Ferry,  47  N.  Y.  317  (1872)  ;  Lynch  v.  Smith,  104  Mass.  52  (1870)  ;  Cascv 
V.  Smith,  152  Mass.  294  (1890)  ;  O'Brien  v.  McGlinchy,  68  Maine  552  (1878)  ; 
McNeil  V.  Boston  Ice  Co.,  173  Alass.  570  (1899). 

It  is  also  clear  that  no  matter  how  careless  the  parent  may  have  been  in 
caring  for  his  child,  his  negligence  is  no  bar  to  recovery  if  the  defendant  had 
the  "last  clear  chance"  to  avoid  injuring  the  child  in  its  exposed  and  dan- 
gerous situation,  Bisaillon  v.  Blood,  64  N.  H.  569  (1888)  ;  Baltimore,  etc.,  R. 
Co.  V.  MacDonell,  43  Md.  534  (1875)  ;  or  where  the  defendant's  conduct  is 
not  negligent  merelv  but  wanton  or  reckless,  Schierhold  v.  North  Beach  &■ 
Mission  R.  Co.,  40  Cal.  447  (1871). 

It  was  held  in  Hennessey  v.  Brooklyn  City  R.  Co.,  6  App.  Div.  206  (N.  Y. 
1896),  tha't,  where  the  infant  plaintiff  who  was  in  its  mother's  arms  in  a  ve- 
hicle driven  by  its  father  was  run  dowii  by  the  concurrent  negligence  of  the 
father  and  the  defendant,  the  negligence  of  the  father  in  driving  the  vehicle 
can  not  be  imputed  to  the  child,  accord,  Lezvin  v.  Lehigh  Valley  R.  Co.,  52 
App.  Div.  69  (N.  Y.  1900)  ;  contra,  Dclazvare,  L.  &  W .  R.  Co.  v.  Devore,  114 
Fed.  155  (1902).  In  Leslie  v.  Lczcisfon,  62  Maine  468  (1873),  the  plaintiff,  a 
young  girl,  who  fell  into  a  ditch  by  the  house  of  her  father,  where  she  resided, 
was  held  precluded  from  recovery  by  the  father's  negligence  in  permitting  the 
ditch  to  remain  uncovered. 

In  Waite  v.  Northeastern  Ry.  Co.,  1  Ellis,  B.  &  E.  719  (1858),  the  infant 
plaintiff,  who  was  injured  by  the  negligence  of  the  defendant  railway  while 
traveling  upon  a  ticket  bought  by  his  grandmother  and  in  her  custody,  was 
held  barred  by  her  contributory  negligence,  largely  upon  the  ground  that  the 
defendants'  liability  was  limited  by  the  terms  of  the  contract  of  carriage, 
which  was  upon  "the  implied  condition"  that  the  child  was  to  be  accompanied 
by  the  person  having  it  in  charge,  per  Cockburn,  C.  J.,  p.  733. 


WARREN  V.  MANCHESTER  STREET  R.  CO.  I427 

objects  of  the  favor  and  protection  of  the  law.  In  the  language  of 
an  ancient  authority  tliis  doctrine  is  thus  expressed :  'The  common 
principle  is  that  an  infant  in  all  things  which  sound  in  his  benefit 
shall  have  favor  and  preferment  in  law  as  well  as  another  man,  but 
shall  not  be  prejudiced  by  anything  in  his  disadvantage.'  9  Vin.  Abr. 
374.  And  it  would  appear  to  be  plain  that  nothing  could  be  more 
to  the  prejudice  of  an  infant  than  to  convert,  by  construction  of  law, 
the  connection  between  himself  and  his  custodian  into  an  agency  to 
which  the  harsh  rule  of  respondeat  superior  should  be  applicable. 
The  answerableness  of  the  principal  for  the  authorized  acts  of  his 
agent  is  not  so  much  the  dictate  of  natural  justice  as  of  public 
policy,  and  has  arisen,  with  some  propriety,  from  the  circumstances 
that  the  creation  of  the  agency  is  a  voluntary  act,  and  that  it  can  be 
controlled  and  ended  at  the  will  of  its  creator.  But  in  the  relation- 
ship between  the  infant  and  its  keeper  all  these  decisive  character- 
istics are  wholly  wanting.  The  law  imposes  the  keeper  upon  the 
child,  who.  of  course,  can  neither  control  nor  remove  him,  and  the 
injustice,  therefore,  of  making  the  latter  responsible  in  any  measure 
whatever  for  the  torts  of  the  former  would  seem  to  be  quite  evi- 
dent. Such  subjectivity  would  be  hostile  in  every  respect  to  the 
natural  rights  of  the  infant,  and  consequently  can  not,  with  any 
show  of  reason,  be  introduced  into  that  provision  which  both  neces- 
sity and  law  establish  for  his  protection.  Nor  can  it  be  said  that 
its  existence  is  necessary  to  give  just  enforcement  to  the  rights  of 
others.  When  it  happens  that  both  the  infant  and  its  custodian  have 
been  injured  -by  the  co-operative  negligence  of  such  custodian  and 
a  third  party,  it  seems  reasonable,  at  least  in  some  degree,  that  the 
latter  should  be  enabled  to  say  to  the  custodian,  'you  and  I,  by  our 
common^carelessness,  have  done  this  wrong,  and  therefore  neither 
can  look  to  the  other  for  redress' ;  but  when  such  wTongdoer  says 
to  the  infant,  'your  guardian  and  I,  by  our  joint  misconduct,  have 
brought  this  loss  upon  you,  consequently  you  have  no  right  of  action 
against  me,  but  you  must  look  for  indemnification  to  your  guardian 
alone,'  a  proposition  is  stated  that  appears  to  be  without  any  basis 
either  in  good  sense  or  law.  The  conversion  of  the  infant,  who  is 
entirely  free  from  fault,  into  a  wrongdoer,  by  imputation,  is  logical 
contrivance  uncongenial  with  the  spirit  of  jurisprudence.  The 
sensible  and  legal  doctrine  is  this:  an  infant  of  tpnder  yepfs  ran  nnt 
be  charged  with  negligence  -^  nor  can  he  be  so  charged  witii  the 
commission  of^uch  lault  by  sub^tution,  for  ITe^  mcaiSabre  ot  ap- 
pointing  an  agent,  the  rnncjpqnpnr./'  hnui^thiii-h£^  r^njn  no  case  be 
considered  to  be  the  blamable  cause,  eitherin  whole  or  in  part,  of 
his  own  injury." 

It  has  never  been  held  in  this  state  that  the  negligence  of  one 
person  is  imputable  to  another,  unless  the  former  was  the  servant 
or  agent  of  the  latter.  Xoyes  v.  Boseoicoi,  64  N.  H.  361.  Appar- 
ently the  doctrine  of  Hartfield  v.  Roper  was  based  upon  the  assump- 
tion that  the  custodian  of  the  infant  was  his  agent.  Such  an  as- 
sumption is  clearly  erroneous,  for  no  such  agency  can  exist  in  fact. 
All  the  elements  of  agency  are  wanting.     The  infant  neither  ap- 


1428  WARREN  v.  MANCHESTER  STREET  R.  CO. 

points  his  custodian  nor  has  power  or  capacity  to  remove  him.  Such 
a  "custodian  is  the  agent,  not  of  the  infant,  but  of  the  law.  If  such 
supposed  agency  existed,  it  would  embrace  many  interests  of  the 
infant,  and  could  not  be  confined  to  the  single  instance  where  an 
injury  is  inflicted  by  the  co-operative  tort  of  the  guardian.  And  yet 
it  seems  certain  that  such  custodian  can  not  surrender  or  impair  a 
single  right  of  any  kind  that  is  vested  in  the  child,  nor  impose  any 
legal  burthen  upon  it.  If  a  mother  traveling  with  her  child  in  her 
arms,  should  agree  with  a  railway  company  that,  in  case  of  an  ac- 
cident to  such  infant  by  reason  of  the  joint  negligence  of  herself 
and  the  company,  the  latter  should  not  be  liable  to  a  suit  by  the 
child,  such  an  engagement  would  be  plainly  invalid  on  two  grounds, 
— first,  the  contract  would  be  contra  bonos  mores,  and,  second,  be- 
cause the  mother  was  not  the  agent  of  the  child  authorized  to  enter 
into  the  agreement.  Nevertheless,  the  position  has  been  deemed  de- 
fensible that  the  same  evil  consequences  to  the  infant  will  follow 
from  the  negligence  of  the  mother,  in  the  absence  of  such  supposed 
contract,  as  would  have  resulted  if  such  contract  should  have  been 
made  and  should  have  been  held  valid."  Newman  v.  Railroad,  52 
N.  J.  Law  446,  448. 

The  reasons  which  prevent  an  adult  from  a  recovery  for  in- 
juries which  his  negligence  contributed  to  produce  are  (i)  "The 
mutuality  of  the  wrong,  entitling  each  party  alike,  where  bpth  are 
injured,  to  his  action  against  the  other,  if  it  entitles  either;  (2)  the 
impolicy  of  allowing  a  party  to  recover  for  his  own  wrong;  and 
(3)  the  policy  of  making  the  personal  interests  of  parties  dependent 
upon  their  own  prudence  and  care.  All  these  are  wanting  in  the 
case  of  the  infant  plaintifif."  Belief ontaine  etc.  R.  R.  v.  Snyder,  18 
Ohio  St.  399,  409.  If  negligence  of  a  parent  can  be  imputed  to 
prevent  a  child's  recovery  for  its  injury,  it  follows  that  it  can  also 
be  imputed  to  render  the  child  liable  in  damages ;  but  such  is  not  the 
law.  "It  is  difficult  to  perceive  what  principle  of  public  policy  is  to 
be  subserved,  or  how  it  can  be  reconciled  with  justice  to  the  infant, 
to  make  his  personal  rights  dependent  upon  the  good  or  bad  con- 
duct of  others."    Belief  ontaine  etc.  R.  R.  v.  Snyder,  supra,  409. 

The  doctrine  of  HartHeld  v.  Roper  imposes  burdens  and  hard- 
ships upon  the  helpless  infant  that  are  manifestly  unjust.  It  is 
opposed  by  the  great  weight  of  modern  authorities,  and  by  sound 
judicial  reason.  Pratt  Coal  &  Iron  Co.  v.  Braivley,  83  Ala.  371, 
374;  Railway  Co.  v.  Rexroad,  59  Ark.  180,  185 ;  Daley  v.  Railroad, 
26  Conn.  591,  598;  Moore  v.  Railroad,  2  Mackey  437,  449;  Chicago 
etc.  Co.  V.  Wilcox,  138  111.  370,  373;  Evansville  v.  Senhenn,  151 
Ind.  42 ;  Wymore  v.  County,  78  Iowa  396,  397 ;  Missouri  etc.  Ry. 
v.  Shockvnan,  59  Kans.  774;  South  Covington  etc.  Ry.  v.  Hcrrklota, 
47  S.  W.  Rep.  265  (Ky.  1898)  ;  Westeriield  v.  Levis,  43  La.  63; 
Shippy  V.  Au  Sable,  85  Mich.  280,  292 ;  Westbrook  v.  Railroad,  66 
Miss.  560,  568;  Winters  v.  Raihvay,  99  Mo.  509,  519;  Huff  v. 
Ames,  16  Neb.  139,  142;  Bottoms  v.  Railroad,  114  N.  C.  699,  706; 
Erie  etc.  Ry.  v.  Schuster,  113  Pa.  St.  412,  416;  Whirley  v.  White- 
man,  I  Head  610,  619;  Norfolk  etc.  R.  R.  v.  Ormsby,  2y  Grat.  455, 


HONEY  V.   CHICAGO,   13.   &  O.   R.   CO.  I429 

476;  Roth  V.  Company,  13  \A'ash.  525,  545;  Dicken  v.  Company,  41 
W.  Va.  511.-  It  is  not  in  harmony  with  the  principles  of  the  law  of 
this  state,  and  is  not  adopted  as  a  part  of  its  jurisprudence. 


HONEY  V.  CHICAGO,  B.  &  Q.  RY.  CO. 

Circuit  Court,  Southern  Dist.  of  Iowa,  1893.    59  Fed.  423. 
United  States  Circuit  Court  of  Appeals  for  Eighth  Circuit,  1894.     63  Fed.  39. 

]\Irs,  Honey  was  struck  by  a  switch  engine  of  the  defendant  and 
injured.  She  brought  an  action  to  recover  for  the  injuries  to  her 
person  and  her  husband  W.  O.  B.  Honey  brought  an  action  to  re- 
cover damages  for  the  loss  of  her  society  and  services.  The  court 
ordered  that  the  two  cases  should  be  tried  together  before  the  same 
jury. 

"The  court  instructed  the  jury  that  if  Mrs.  Honey,  by  negli- 
gence on  her  part,  had  contributed  to  the  accident,  she  could  not 
recover,  but  that  negligence  on  her  part  would  not  defeat  the  action 
on  behalf  of  her  husband." 

The  jury  found  a  verdict  for  the  defendant  in  the  suit  brought 
by  Mrs.  Honey  and  for  the  plaintiff  in  the  suit  brought  by  her  hus- 
band.   The  defendant  moved  for  a  new  trial. 

Shiras,  District  Judge.  The  Supreme  Court  of  Iowa,  in  con- 
struing the  statute  of  the  state,  has  declared  the  law  to  be  that  there 
can  not  be  a  joinder  of  the  husband  and  wife  in  actions  of  this 
character.  The  wife  must  sue  alone  upon  the  cause  of  action  ac- 
cruing to  her,  and  so  also  must  the  husband.  A  judgment  rendered 
in  the  one  case  can  not  be  availed  of  even  as  evidence,  and  much 
less  as  an  adjudication  in  the  other.^ 

It  can  not  be  successfully  maintained  that  the  right  of  action  in 
behalf  of  the  husband  is  derived  from  the  wife.  The  right  of  action 
on  behalf  of  the  husband  to  recover  the  damages  resulting  to  him 


■Accord:  also  Ferguson  v.  Columbus  &  Rome  R.  Co.,  77  Ga.  102  (1886)  ; 
Galveston  H.  &  H.  R.  Co.  v.  Moore,  59  Tex.  64  (1883)  ;  Robinson  v.  Kohn, 
22  Vt.  213  (1850)  ;  Chicago  G.  IV.  R.  Co.  v.  Ko^calski,  92  Fed.  310  (34  C.  C. 
A.  1  (with  elaborate  notes)  - 1899)  ;  Jacksonville  Electric  Co.  v.  Adams,  SO 
Fla.  429  (1905).  see  Evansvillc  v.  Lcnherm  and  Mo.-R.  R.  v.  Stockman,  cited 
in  the  principal  case,  and  Matson  v.  Minn.  etc.  R.  R.,  90  Minn.  471   (1903). 

For  valuable  notes  on  the  whole  subject,  see  21  L.  R.  A.  76  and  8  L. 
R.  A.  (X.  S.)  664-669. 

Where  the  parent  himself  sues  for  the  loss  of  his  child's  services,  he  can 
not  recover  if  his  negligent  custody  is  the  contributing  cause  of  the  injury, 
Pittsburgh,  Allegheny  &  Manchester  R.  Co.  v.  Pearson,  72  Pa.  169  (1872). 

^"The  plaintiff  in  the  one  case  can  not  release  or  discharge  the  right 
of  action  belonging  to  the  plaintiff  in  the  other.  The  payment  of_  damages  in 
the  one  case  has  no  legal  eft'ect  upon  the  damages  to  be  awarded  in  the  other. 
The  admission  or  statements  of  the  wife,  not  forming  part  of  the  'res 
gestae,'  are  not  admissible  as  evidence  against  the  plaintiff  in  the  suit  by  the 
husband,  although  they  are  evidence  against  the  plaintiff  in  the  suit  brought 
by  the  wife;  and  so  also  the  admissions  of  the  husband,  though  provable 
against  him,  are  not  admissible  in  the  suit  of  the  wife.  In  all  particulars 
ihe  right  of  action  accruing  to  the  wife  and  that  accruing  to  the  husband 
are  separate  and  distinct." 


1430  HONEY  Z\   CHICAGO,   B.   &  Q.   R.   CO. 

never  belonged  to  the  wife.  She  could  not  assign  or  release  the 
same.  The  husband's  right  of  action  is  based  upon  the  invasion  of 
his  rights,  and  recovery  is  sought  of  the  consequential  damages 
caused  him.  The  legal  injury  complained  of  is  that  caused  to  the 
husband,  and  not  that  caused  to  the  wife.  The  negligence  of  the 
wife  can  not,  therefore,  be  availed  of  as  a  defense  to  the  husband's 
action  on  the  ground  that  he  stands  in  the  position  of  an  assignee 
or  representative  of  a-  right  of  action  accruing  to  the  wife,  or  upon 
the  theory  that  his  right  of  action  is  derived  through  her. 

Can  it  be  said,  in  any  proper  sense,  that  the  wife,  with  relation 
to  the  accident,  occupied  the  position  of  agent  for  her  husband? 
In  going  to  the  depot,  in  order  that  she  might  take  passage  upon 
the  train,  she  was  not  acting  for  her  husband  in  any  proper  sense. 
She  was  not  undertaking  to  do  anything  in  furtherance  of  any  busi- 
ness belonging  to  the  husband,  nor  was  she  exercising  any  rights, 
powers,  or  authority  derived  from  him.  She  was  acting  in  her  own 
right,  for  a  purpose  personal  to  herself.  As  is  pointed  out  in  Little 
V.  Ilackett,  116  U.  S.  366,  6  Sup.  Ct.  391,  to  constitute  the  relation 
of  principal  and  agent  in  such  sense  that  the  negligence  of  the  latter 
can  be  imputed  to  the  former,  the  relation  must  be  such  that  re- 
sponsibility to  third  parties  would  attach  to  the  principal  for  in- 
juries resulting  from  the  negligence  of  the  agent;  or,  to  apply  the 
rule  to  this  case,  the  relation  must  be  such  that  \\'.  O.  B.  Honey 
would  be  liable  to  third  parties  for  injuries  caused  them  by  the  neg- 
ligence of  Ellen  Honey. 

Can  it  be  defeated  on  the  ground  that  she  was  his  wife?  In 
considering  this  aspect  of  the  case  it  must  be  always  remembered 
that  the  legal  fiction  of  the  common  law,  that  a  husband  and  wife 
are  one,  and  that  one  is  the  husband,  has  been  wholly  abrogated  in 
Iowa  by  the  legislation  of  the  state. 

Touching  liability  for  the  acts  of  a  wife,  it  is  declared  by  section 
2205  of  the  Code  of  Iowa  that : — 

"for  all  civil  injuries  committed  by  a  married  woman,  damages 
may  be  recovered  from  her  alone,  and  her  husband  shall  not  be  re- 
sponsible therefor,  except  in  cases  where  he  would  be  jointly  re- 
sponsible with  her,  if  the  marriage  did  not  exist." 

This  section  abrogates  the  common-law  liability  of  the  husband 
for  the  acts  of  the  wife,  and  there  is  no  longer  any  legal  liability 
on  part  of  the  husband  to  third  parties  for  the  consequences  of  her 
negligent  acts,  simply  on  the  ground  that  she  is  his  wife.  To  hold 
the  husband  responsible  for  the  consequences  of  her  negligence,  it 
must  appear  that  he  would  be  responsible  if  he  was  not  her  husband. 

The  motion  for  new  trial  is  therefore  overruled. 

Defendant  brings  error  to  the  Circuit  Court  of  Appeals.  Be- 
fore Caldwell  and  Sanborn,  Circuit  Judges,  and  Thayer,  District 
Judge. 

Thayer,  District  Judge.  The  learned  judge  of  the  trial  court 
appears  to  have  been  of  the  opinion  that  a  husband  suing  for  the 
loss  of  the  services  of  his  wife,  and  for  medical  expenses,  occa- 
sioned b.y  the  negligence  of  a  third  party,  is,  in  the  state  of  Iowa  at 


HONEY  V.   CHICAGO,   P..   &  Q.   R.   CO.  I43I 

least,  unaffected  by  the  fact  that  the  wife  was  guilty  of  contributor)! 
negHgence,  because  the  laws  of  that  state  have  abolished  the  legal 
fiction  of  the  identity  of  husband  and  wife,  and  have  exempted  the 
husband  from  responsibility  for  the  negligence  and  misfeasance  of 
the  wife.  Whenever  the  question  has  heretofore  been  considered,  it 
seems  to  have  been  "taken  for  granted  that  the  relation  existing  be- 
tween husband  and  wife  or  parent  and  child  is  of  such  character 
that  the  plea  of  contributory  negligence  on  the  part  of  the  wife  or 
child,  if  the  latter  is  of  sufficient  age  and  intelligence  to  be  charge- 
able with  negligence,  is  a  good  defense,  when  the  husband  or  parent 
brings  a  common-law  action  to  recover  for  the  loss  of  service  or  for 
medical  expenses  consequent  upon  physical,  injuries  sustained  by 
the  wife  or  child  through  the  concurring  fault  of  another.  The 
following  are  some  of  the  cases,  and  doubtless  there  are  others, 
where  this  principle  has  been  recognized  and  enforced:  Railroad 
Co.  V.  Terry,  8  Ohio  St.  570;  Dietrich  v.  Raihvay  Co.,  58  Md.  347; 
Benton  v.  Raihvay  Co.,  55  Iowa  496,  8  N.  W.  330 ;  Iron  Co.  v.  Braiv- 
ley,  (Ala.)  3  South.  555;  Gilligan  v.  Railroad  Co.,  i  E.  D.  Smith, 
453.'  In  none  of  these  cases  last  cited  was  the  reason  of  the  rule 
stated,  nor  was  the  subject  much  discussed."  It  seems  to  have  been 
taken  for  granted  that  the  concurring  negligence  of  the  injured 
party  was  a  sufficient  defense  to  a  suit  by  the  husband  or  parent, 
when  suing  merely  for  a  loss  of  the  services  of  the  injured  party, 
or  for  medical  expenses  incurred  and  paid  by  him  in  the  discharge 
of  his  obligation  as  husband  or  parent.  If  we  look  for  the  true 
foundation  of  the  rule  in  question,  we  apprehend  that  it  will  not  be 
difficult  to  find.  When  one  person  occwpies  such  a  relation  to  an- 
other rational  human  being  that  he  is  legally  entitled  to  her  society 
and  service&j  and  to  maintain  a  suit  for  the  deprivation  thereof,  he 
should  not  be  permitted  to  recover  in  such  an  action  if  the  loss  was 
occasioned  by  the  concurring  negligence  of  the  person  on  whose 
account  the  right  of  action  is  given.  If  the  person  from  whom  the 
right  of  service  and  society  is  derived  is  capable  of  taking  ordinary 
precautions  to  insure  her  own  safety,  and  the  person  to  whom  the 
right  of  service  belongs  suffers  her  to  go  abroad  unattended,  and 
to  exercise  her  own  faculties  of  self-preservation,  it  is  no  more  than 
reasonable  to  hold  him  responsible,  in  a  suit  for  loss  of  society  and 
service,  for  the  manner  in  which  such  faculties  have  been  exercised. 
We  can  conceive  of  no  greater  reason  for  deciding,  in  a  case  of  this 
character,  that  a  husband  is  not  accountable  for  the  conduct  of  his 
wife  in  caring  for  the  safety  of  her  own  person,  than  there  would  be 
for  holding  that  he  was  not  chargeable  with  her  contributory  neg- 
ligence in  the  management  of  a  horse  and  carriage  belonging  to  the 
husband,  which  she  has  been  permitted  to  use  for  her  own  pleasure 
and  convenience.-    In  either  case  the  fact  that  the  husband  has  per- 


=  Citing  "Yahn  v.  City  of  Ottumwa.  60  Iowa  429.  15  N.  W.  257,  as  ex- 
plained in  Nisbet  v.  Town  of  Garner,  75  Iowa  314,  317,  39  N.  W.  516;  Peck 
V.  N.  Y.,  N.  H.  &  H.  R.  Co.,  50  Conn.  379;  Carlisle  v.  Sheldon,  38  Vt. 
440.  447." 

'See  also,  Oakland  et'-~  R.  Co.  v.  Fielding,  48  Pa.  320  (1864). 


1432  HONEV  Z'.   CHICAGO,   D.   &  Q.   R.   CO. 

mitted  the  wife  to  control  her  own  movements  and  to  provide  for 
lier  own  safety,  upon  the  evident  assumption  that  she  is  competent 
to  do  so,  should  preckide  him  from  asserting,  in  a  suit  against  a 
third  party  for  loss  of  service  or  society  or  for  a  loss  of  property, 
that  he  is  not  responsible  for  her  contributory  fault  whereby  the 
loss  was  occasioned.  By  the  Iowa  courts,  it  is  said  that  the  hus- 
band's negligence  is  imputable  to  the  wife  under  such  circumstances, 
because  of  the  marital  relation  which  entitles  her  to  his  care  and 
protection.'* 

Even  if  we  should  concede  it  to  be  the  better  view  that  the  hus- 
band's contributory  negligen(;:e  is  not  imputable  to  the  wife  when  she 
sues  in  her  own  right  for  an  injury  sustained,  still  we  think  that  it 
would  not  be  a  reasonable  deduction  from  this  rule  that  the  husband 
is  likewise  unaffected  by  the  wife's  negligence  when  he  sues  for 
loss  of  services  and  medical  expenses ;  for,  when  the  wife  brings  an 
action  for  personal  injuries  which  she  has  sustained,  the  right  of  ac- 
tion is  in  no  wise  dependent  upon  the  marital  relation.  She  does 
not  derive  her  right  to  sue  from  that  relation,  but  brings  suit  like 
any  other  person  for  an  injury  sustained  through  the  fault  of  an- 
other. At  common  law  it  was  necessary  for  the  wife  to  be  joined 
as  plaintiff  in  such  a  suit,  because  she  was  regarded  as  the  meritori- 
ous cause  of  action.  But  on  the  other  hand,  the  husband's  right  to 
sue  for  loss  of  society  and  services  grows  out  of  the  marital  rela- 
tion, and  is  incident  to  the  rights  thereby  acquired.  It  has  its 
origin  in  the  existence  of  a  valid  marriage,  which  relation  entitles 
him  to  the  benefit  of  the  wife's  services  and  society,  and  which  also 
imposes  on  him  the  duty  of  providing  her  with  medical  attendance 
in  case  of  sickness  or  accident.  The  right  of  action  is  incident  to 
the  marriage  relation,  and  can  not  exist  without  it.  We  think, 
therefore,  that,  even  if  it  is  the  better  view  that  the  husband's  con- 
tributory negligence  can  not  be  imputed  to  the  wife  when  she  sues 
for  her  own  injuries,  yet  that  when  the  husband  brings  an  action 
for  the  loss  of  society  and  services,  which  loss  was  due  to  the  con- 
tributory fault  of  the  wife,  her  want  of  ordinary  care  should  never- 
theless be  imputed  to  the  husband  on  the  grounds  heretofore  indi- 
cated. As  the  respective  rights  of  action  are  predicated  on  different 
grounds, — the  one  growing  out  of  the  marriage  relation,  and  the 
other  existing  entirely  independent  of  that  relation, — there  is  no 
logical  difficulty  in  holding  the  husband  accountable  for  the  con- 
tributory negligence  of  the  wife,  although  the  latter  is  not  respon- 
sible for  the  contributory  fault  of  her  husband. 

If  it  is  true,  as  has  been  intimated,  that  the  statutes  in  question 
free  the  parties  to  the  marriage  contract  from  all  obligations  to  each 
other,  save  those  of  affection  and  loyalty,  then  it  would  be  pertinent 
to  inquire  upon  what  theory  the  husband  can  be  permitted  to  prose- 
cute a  suit  like  the  one  now  in  hand.  It  certainly  can  not  be  main- 
tained that  the  husband  is  entitled  to  sue  for  damages  consequent 
upon  the  loss  of  his  wife's  services  and  society,  unless  she  is  still 


*  See  however  Bigelow  on  Torts,  6th  ed.  385,  7th  ed.  406,  and  Bishop  on 
Xon-Contract  Law,  §  584. 


MONROE  V.   HARTFORD  STREET  R.  CO.  1433 

under  an  obligation  to  the  husband,  as  at  common  law,  to  care  for 
his  home,  attend  to  the  wants  of  his  family,  and  do  whatever  else  is 
within  her  power  which  is  conducive  to  his  comfort,  happiness,  and 
prosperity. 

We  can  discover  nothing  in  the  language  of  the  statute  which 
gives  it  any  greater  scope,  or  which  fairly  indicates  that  the  legis- 
lature intended  to  deprive  a  third  party  of  the  benefit  of  the  plea  of 
contributory  negligence  when  he  is  sued  by  the  husband  for  an  in- 
jury sustained  by  the  wife  in  consequence  of  her  own  and  such 
third  party's  negligence.  Entertaining  these  views,  the  judgment 
of  the  circiiit  court  is  reversed  and  the  case  is  remanded,  with  direc- 
tions to  award  a  new  trial. ^ 


CHAPTER  III. 

Plaintiff's  Breach  of  Statutory  Duty. 


MONROE  V.  HARTFORD  STREET  RAILWAY  CO. 

Supreme  Court  of  Errors  of  Connecticut,  1903.     76  Conn.  201. 

Action  to  recover  damages  for  negligently  running  into  and 
injuring  the  plaintiff's  milk  wagon,  brought  to  the  Court  of  Com- 
mon Plea*  in  Hartford  County  and  tried  to  the  jury  before  Coats,  J. ; 
verdict  and  judgment  for  the  plaintiff,  and  appeal  by  the  defendant. 
Error  and  iiciv  trial  granted. 

The  plaintiff  was  the  owner  of  a  pair  of  horses  and  wagon, 
used  for  the  daily  delivery  of  milk  upon  a  route  including  Asylum 
Avenue  in  the  city  of  Hartford,  which  was  driven  by  his  servant, 
Brewer. 

The  defendant  operated  an  electric  railroad  upon  Asylum  Ave- 
nue. 

At  the  time  of  the  injury  complained  of,  the  plaintiff's  team  was 
standing  across  Asylum  Avenue  with  the  wagon  upon  the  tracks  of 
defendant's  railroad,  the  plaintiff"s  servant.  Brewer,  being  at  the 
time  in  the  kitchen  of  a  neighboring  house  occupied  by  one  Patten- 
den.  While  thus  standing  the  wagon  was  struck  by  a  car  of  de- 
fendant, thrown  oft'  the  track,  and  the  wagon  and  its  contents  in- 
jured. 

The  complaint  charges  the  defendant  with  negligence,  in  that 
it  "negligently  struck  said  wagon  as  it  was  standing  stationary  on 
said  tracks,"  while  "running  a  car  at  a  high  rate  of  speed. '^ 

H.XMMERSLEY,  J.  The  purpose  of  the  city  ordinance  is  obvious. 
It  assumes  that  any  horse  in  a  city  street  without  a  driver  or  keeper 
is  a  source  of  danger  to  the  person  and  property  of  those  using  the 


'Accord:    Jlluucr  v.  Oakland.  158  Pa.  St.  405   0893). 


1434  MONROE  V.   HARTFORD  STREET  R.  CO. 

street,  unless  the  horse  is  hitched,  and  that  injury  to  such  persons 
may  be  the  natural  result  of  leaving  an  unhitched  horse  in  a  city 
street.  For  the  protection  of  such  persons  and  the  prevention  of 
such  injuries,  it  makes  the  act  of  leaving  any  unhitched  horse  in  a 
city  street  a  misdemeanor  punishable  by  a  fine.  State  v.  Keenan,  57 
Conn.  286. 

It  is  also  obvious  that  the  evil  provided  against  includes  not 
only  the  permanent  or  indefinite  abandonment  of  a  horse,  but  those 
temporary  departures  which  are  most  likely  to  frequently  occur  if 
not  forbidden.  The  meaning  of  the  language  used  to  accomplish 
this  obvious  purpose  is  clear.  There  can  be  no  reasonable  doubt  as 
to  the  meaning  of  "unhitched,"  used  in  this  connection,  and  very- 
little  as  to  "leaving."  Certainly  going  away  from  the  horse  beyond 
sight,  hearing,  and  reasonably  immediate  reach,  is  "leaving"  it 
within  the  meaning  of  the  ordinance.  When  an  unhitched  horse 
has  been  thus  left,  the  ordinance  has  been  violated,  whether  the 
horse  is  gentle  and  well  trained  or  not. 

(The  court  instructed  the  jury  that  the  plaintiff  mJght  retain 
control  over  his  horse  though  left  unhitched  in  the  street  and  that 
it  was  for  them  to  determine  whether  the  horse  was  still  within  his 
control,  and  that  the  kind  of  control  which  the  driver  may  retain 
over  a  horse  which  he  has  left  in  the  street  was  a  question  of  fact 
for  them  to  settle.) 

This  instruction,  in  view  of  the  state  of  the  evidence  and  claims 
made,  was  inaccurate  and  inadequate.  It  was,  however,  harmless, 
if  a  violation  of  the  ordinance  could  not  be  a  proximate  cause  of 
the  injury  alleged,  and  a  new  trial  should  not  be  granted  unless  it  is 
clear  as  a  matter  of  law  that  when  a  driver  has  left  his  horse  in  the 
street  unhitched,  and  a  collision  between  his  team  and  another 
vehicle  occurs  directly  after  he  has  left  them  and  near  the  place 
where  he  has  left  them,  this  unlawful  act  of  his  may  be  a  proximate 
cause  of  the  injury  inflicted  by  the  collision.  We  think  it  is  clear 
that  such  an  unlawful  act  may  be  a  proximate  cause  of  such  injury. 

There  is  some  real  and  more  apparent  conflict  of  opinion  in  the 
many  cases  treating  of  the  relation  between  an  illegal  act  and  a  co- 
incident injury.  In  doing  an  unlawful  act  a  person  does  not  neces- 
sarily put  himself  outside  the  protection  of  the  law.  He  is  not 
barred  of  redress  for  an  injury  sufifered  by  himself,  nor  liable  for 
an  injury  suffered  by  another,  merely  because  he  is  a  lawbreaker/ 


^  Where  the  defendants'  sole  wrong  lies  in  the  illegality  of  his  act  and 
the  plaintiff  participates  therein,  even  though  his  participation  goes  no  further 
than  witnessing  its  commission  as  a  spectator,  he  can  not  recover  if  injured. 
The  plaintiff  if  merely  a  spectator,  however,  is  not  barred  from  recovery  if 
the  illegal  act  is  so  improperly  done  as  to  threaten  and  cause  injury  to  him 
as  a  spectator,  Scanlon  v.  Wcdgcr,  156  Mass.  462  (1892),  a  spectator  on  the 
highway  injured  by  the  setting  off  of  fireworks  by  the  defendant  under  a 
void  license  issued  by  the  town  authorities ;  Frost  v.  Joslin,  180  Mass.  389 
(1901)  :  Johnson  v.  City  of  New  York,  186  N.  Y.  139  (1906),  plaintiff,  while 
trespassing  upon  private  property  upon  the  highway  for  the  purpose^  of 
watcliing  an  automobile  race  illegally  authorized  by  the  city  of  New  York 
there'n,  injured  by  a  skidding  automobile.  It  would  seem  from  these  cases 
that  if  the  plaintiff'  had  been  a  person  using  the  highway  as  a  traveller,  he 


MONROE  V.   HARTFORD  STREET  R.  CO.  1435 

In  actions  to  recover  for  injuries  not  intentionally  inflicted  but 
resulting  from  a  breach  of  duty  which  another  owes  to  the  party 
injured — commonly  classed  as  actions  for  negligence — the  fact  that 
the  plaintifit'  or  defendant  at  the  time  of  the  injury  was  a  lawbreaker 
may  possibly  be  relevant  as  an  incidental  circumstance,  but  is  other- 
wise "immaterial  unless  the  act  of  violating  the  law  is  in  itself  a 
breach  of  duty  to  the  party  injured  in  respect  to  the  injury  suffered. 
Ordinarily,  in  actions  of  this  kind,  the  breach  of  duty  is  a  failure 
to  exercise,  in  conduct  liable  to  be  dangerous  to  others,  that  care 
which  a  man  of  ordinary  prudence  would  exercise  under  the  par- 
ticular circumstances  of' the  case.  But  the  State  regards  certain 
acts  as  so  liable  to  injure  others  as  to  justify  their  absolute  pro- 
hibition. In  such  case  doing  the  forbidden  act  is  a  breach  of  duty 
in  respect  to  those  who  may  be  injured  thereby. 

The  cause  of  action  which  arises  upon  an  injury  resulting  from 
a  breach  of  duty  in  respect  to  the  party  injured  in  neglecting  to  use 
that  care  which  the  law  requires  under  the  particular  circumstances 
of  the  case,  for  the  protection  of  those  liable  to  be  injured  by  such 
neglect,  is  the  same  as  the  cause  of  action  arising  upon  an  injury  re- 
sulting from  a  breach  of  duty  in  respect  to  the  person  injured  in 
doing  an  act  forbidden  by  statute,  for  the  protection  of  those_ liable 
to  be  injured  through  sHch  act.  The  main  distinction  lies  in  the 
method  of  proof.  In  the  former  case,  the  breach  of  duty  must  be 
established  by  showing  a  want  of  due  care  under  all  circumstances ; 
in  the  latter  case  it  may  be  established  by  proving  the  commission 
of  the  illegal  act.  In  both  cases  two  questions  are  presented.  First, 
was  there  a  breach  of  duty  in  respect  to  any  person  liable  to  be 
injured  \JJ  the  conduct  proved?  Second,  was  this  breach  of  duty 
a  proximate  cause  of  the  injury  alleged?  And  the  principles  which 
determine  the  relation  of  the  negligent  conduct  in  the  one  case,  or 
the  illegal  act  in  the  other,  to  the  resulting  injury  as  a  proximate 
cause,  are  the  same. 

Applying  the  principles  which  determine  the  causal  relation  be- 
tween a  negligent  act  and  the  following  mjury,  to  the  admitted  facts 
in  the  present  case,  it  is  apparent  that  the  illegal  act  was  not  neces- 
sarily a  mere  independent  concomitant  or  condition  of  the  collision, 
but  might  well  be  a  contributing  cause,  and  might  be,  according  as 
the  jury  should  find  the  attendant  or  surrounding  circumstances,  a 
proximate  cause  of  the  injury.  "Cause"  and  "consequence"  are  cor- 
relative terms.  One  implies  the  other.  When  an  event  is  followed 
in  natural  sequence  by  a  result  it  is  adapted  to  produce,  or  aid  in 
producing,  that  result  is  a  consequence  of  the  event,  and  the  event 
is  the  cause  of  the  result. 

The  illegal  act  of  leaving  horses,  harnessed  to  a  wagon,  tm- 
hitched,  is  adapted  to  aid  in  producing  a  collision  resulting  from  the 
horses,  thus  left  unrestrained,  pursuing  their  own  way  through  the 
street.  It  is  for  this  very  reason  that  the  State  makes  the  act  illegal. 
When  the  resulting  colhsion  follows  such  illegal  act  in  natural  se- 

could  have  recovered  in  any  of  these  cases,  on  the  ground  merely  of  tlie 

illegality. 


1436  BOURNE  V.   WHITMAN. 

(juence,  the  act  is  a  cause  of  the  coUision,  and  if  the  sequence  is 
direct  and  unbroken  by  any  independent,  intervening  cause,  may  be 
the  proximate  cause.  Whether  or  not,  under  all  the  circumstances 
of  the  case,  it  is  the  proximate  cause,  is  a  question  of  fact  for  the 
jury  under  proper  instructions  from  the  court. 

The  fact  that  the  plaintiff's  servant  had  violated  the  city  ordi- 
nance was,  therefore,  one  upon  which  the  plaintiff's  right  of  recov- 
ery might  depend,  and  the  error  of  the  trial  court  in  the  instruc- 
tions given  upon  the  meaning  of  that  ordinance  was  material  and 
harmful.^ 


^\ 


BOURNE  V.  WHITMAN. 
Supreme  Court  of  Massachusetts,  1911.    209  Mass.  155. 


Kxo\\"LTOX,  C.  J.  These  are  actions  to  recover  fpr  injuries 
received  from  a  collision  between  two  automobiles,  in  one  of  whicli 
were  the  two  plaintiffs.  The  accident  happened  late  in  the  evening 
of  August  15,  1908.  The  defendants  asked  the  judge  to  instruct 
the  jury  as  follows:  'Tf  the  jury  find  that  at  the  time  of  the  acci- 
dent the  defendant  was  driving  on  the  right  of  the  middle  of  the 
travelled  part  of  the  way,  it  is  evidence  of  the  exercise  of  due  care 
on  his  part,  and  if  the  jury  shall  find  that  the  plaintiff*  Bourne  was 
driving  his  machine  in  an  opposite  direction  and  collided  with  the 
defendant,  this  is  evidence  that  the  plaintiff'  was  acting  in  violation 
of  R.  L.  c.  54,  §  I,  requiring  him  to  drive  to  the  right  of  the  middle 
of  the  travelled  part  of  the  road,  and  unexplained  indicates  negli- 
gence on  the  part  of  the  plaintiff."  There  was  evidence  to  which 
the  request  w^as  applicable.  There  was  also  other  evidence  bearing 
upon  the  questions  whether  the  plaintiffs  were  in  the  exercise  of 
due  care  and  w^hether  the  defendants  were  negligent.  The  request 
was  in  accordance  with  the  law  as  laid  down  in  Perlstein  v.  Amer- 
ican Express  Co.,  i/J  ^lass.  530,  and  in  other  cases,  and  it  well  might 
have  been  given.  Perhaps  the  defendants  properly  might  have  gone 
further  and  have  asked  for  an  instruction  that  if  the  jury  found  the 
facts  stated  in  the  request,  and  also  found  that  this  violation  of  the 
statute  was  one  of  the  direct  and  proximate  causes  of  the  collision, 
the  plaintiff  Bourne  could  not  recover.  Neivcomh  v.  Boston  Protect- 
ii'c  Department,  146  Mass.  596. 

One  of  the  defendants  was  a  father,  who  owned  the  automobile, 

''Accord:  Newcomb  v.  Boston  Protective  Dcp.,  146  Mass.  596  (1888), 
facts  similar  to  those  in  principal  case;  and  see  other  Massachusetts  cases 
cited  in  Netvcomb  v.  Boston,  etc..  and  in  Bourne  v.  Whitman,  post:  Baker  v. 
Portland,  58  Maine  199  (1870).  plaintiff  injured  by  defect  in  highway  while 
driving-  faster  than  ordinance  permitted,  Chesapeake,  etc.,  v.  Jennings.  98  Va. 
70  (1900),  similar  facts,  with  which  compare  WcUcr  v.  Chi.,  M.  &  St.  P.  R. 
Co.,  120  Mo.  635  (1893)  :  Tackctt  v.  Taylor,  123  Iowa  149  (1904),  defective 
bridge  fell  while  the  plaintiff  was  upon  it  operating  a  traction  engine  in  a 
wav  which,  while  prohibited  bv  statute,  had  nothing  to  do  with  its  fall : 
Welch  V.  Weeson.  6  Gray  505  (Mass.  1856),  and  Broschart  v.  Tuttle,  59  Conn. 
1  (1895),  plaintiff  injured  by  negligence  of  defendant  with  whom  he  was 
racing  in  violation  of  a  statute. 


BOURNE  V.  WHITMAN.  1437 

and  the  other  was  his  minor  son  nineteen  years  of  age,  who  oper- 
ated it  as  his  chauffeur  a  part  of  each  year,  without  compensation. 
He  had  had  a  Hcense  to  operate  an  automobile  as  chauffeur  for  his 
father,  William  P.  Whitman,  in  1905,  1906,  1907  and  1908,  up  to 
August  14,  1908,  when  the  license  expired.  He  had  made  an  ap- 
l^lication  for  another  license  which  was  issued  to  him  on  August 
17.  On  August  15,  1908,  the  day  of  the  accident,  he  was  operating 
the  machine  without  a  license.  The  evidence  tended  to  show  that 
he  was  of  large  experience  in  this  business  and  presumably  thor- 
oughly competent. 

At  the  request  of  the  plaintiff's,  the  judge  instructed  the  jury 
that  "Richard  P.  Whitman  at  the  time  of  the  accident  was  a  tres- 
passer upon  the  highway  and  had  no  legal  right  then  and  there  to 
operate  the  car."  Undei*  the  first  part  of  the  instruction  the  plain- 
tiffs owed  him  no  duty  except  to  refrain  from  inflicting  an  injury 
upon  him  wantonly  or  recklessly.  He  had  no  right  to  put  his  car 
in  the  way  of  the  plaintiffs,  or  to  interfere  with  their  use  of  the 
road  in  any  part  which  they  chose  to  occupy.  The  rights  and  duties 
of  both  parties  were  different  from  those  of  ordinary  travellers. 
Presumably  the  instruction  aff'ected  the  decision,  and  if  it  was  erro- 
neous, there  must  be  a  new  trial. 

For  the  discussion  of  this  part  of  the  case,  we  assume  that 
rlie  defendant  Richard  received  no  protection  from  Dr.  Hunt's  li- 
cense.^ He  was  then  violating  the  law  in  not  having  obtained  an- 
other license  before  running  the  car.  What  effect  did  this  violation 
have  upon  the  right  of  either  party  to  recover,  when  there  was  an 
accidental  collision  between  his  car  and  that  of  another  driver  on 
the  highway? 

It  is  universally  recognized  that  the  violation  of  a  criminal  stat- 
ute is  evidence  of  negligence  on  the_^part  ot  the^Wolator.  as  to  all 
consequences  that  the  statute  was  inten.^edto  prevent.  It  has  been 
said  in  a  general  way  that  such  a  violatioiTTrrvidence  of  negligence 
of  the  violator,  and  it  has  sometimes  been  stated  that  this  would 
show  negligence,  that  can  be  availed  of  as  a  ground  of  recovery 
by  one  who  suffers  any  kind  of  an  injury  from  him  while  this  ille- 
gality continues;  but  it  is  now  settled  that  it  is  not  even  evidence 
of  negligence,  except  in  reference  to  matters  to  which  the  statirtc_ 
relates.  Davis  v.  John  L.  Whiting  <^Son  Co.,  201  Mass.  91,  96  and 
cases  cited.  A  criminal  statute  in  the  usual  form  is  enacted  for  the 
benefit  of  the  public.  It  creates  a  duty  to  the  public.  Every  mem- 
ber of  the  public  is  covered  by  the  protecting  influence  of  the  obli- 
gation. If  one  suft'ers  injury  as  an  individual,  in  his  person  or  his 
property,  by  a  neglect  of  this  duty,  he  has  a  remedy,  not  because 
our  general  criminal  laws  are  divided  in  their  operation,  creating 
one  duty  to  the  public  and  a  separate  duty  to  individuals ;  but  l)e- 
cause  as  one  of  the  public  in  a  peculiar  situation,  he  suft'ers  a  special 


*The  plaintiff  claimed  that  under  the  terms  of  the  statute  he,  though 
without  a  license,  was  entitled  to  drive  it  because  "accompanied  by  a  licensed 
chauffeur." 


1438  BOURNE  V.  WHITMAN. 

injury,  different  in  kind  from  that  of  the  pubHc  generally,  from  the 
neglect  of  the  public  duty.- 

If  we  consider  the  effect  of  such  a  violation  of  law  by  a  plain- 
tiff, upon  his  right  to  recover,  the  principles  that  have  been  recog- 
nized are  instructive.  They  were  considered  long  ago  in  connection 
with  our  Sunday  law.  It  has  been  established  from  early  times  that 
one  who  is  violating  a  criminal  law  can  not  recover  for  an  injury 
to  which  his  criminality  was  a  directly  contributing  cause.^  It  was 
early  held  in  this  State  that  one  travelling  in  violation  of  the  stat- 
utes as  to  the  observance  of  the  Lord's  day,  could  not  recover  for 
an  injury  received  while  so  travelling.  Smith  v.  Boston  &  Maine 
Railroad,  120  Mass.  490  and  cases  cited.  Lyons  v.  Desotelle,  124 
Mass.  387.  Day  v.  Highland  Street  Railway,  135  Mass.  113.  White 
V.  Lang,  128  Mass.  598.  McGrath  v.  Merwin,  112  Mass.  467.  These 
decisions  on  the  Sunday  law  have  been  much  criticised  in  the  opin- 
ions of  other  courts  and  by  writers  of  textbooks.  Broschart  v.  Tut- 
tle,  59  Conn.  i.  Sutton  v.  Waiiwatosa,  29  Wis.  21.  Baker  v.  Port- 
land, 58  Maine,  199.  Baldzvin  v.  Barney,  12  R.  I.  392.  Johnson  v. 
Irashurgh,  47  Vt.  28.  Platz  v.  Cohocs,  89  N.  Y.  219.  The  ground 
of  the  criticism  may  be  stated  in  a  word,  as  a  supposed  failure  to 
distinguish  between  criminality  which  is  a  cause,  and  criminality 
which  is  a  mere  condition  of  an  injury  for  which  recovery  is  sought. 
But  this  distinction  is  now  thoroughly  established  in  our  law.  New- 
comb  V.  Boston  Protective  Department,  146  Mass.  596.  Farrell  v. 
Sturtevant  Co.,  194  Mass.  431,  434.  Moran  v.  Dickinson,  204  Mass. 
559,  562.  The  Sunday  law,  so  called,  has  been  repealed  as  to  its 
effect  as  a  bar  to  recovery  in  actions  of  tort  showing  a  violation 
of  it  by  the  plaintiff.  R.  L.  c.  98,  §  17.  The  old  case  of  Gregg_  v. 
JVyman,  4  Cush.  322,  as  to  the  effect  of  the  Sunday  law  in  barring 
a  claim  in  trover  against  one  who  had  driven  a  horse  hired  for 
service  on  Sunday  to  a  different  place  from  that  agreed  upon,  was 
overruled  by  this  court  before  the  partial  repeal  of  the  Sunday  law. 
Hall  V.  Corcoran,  107  Mass.  251.  Other  cases  have  been  decided, 
in  which  it  was  held  that  illegality  of  the  plaintiff  was  no  bar  to 
his  recovery  for  an  injury,  unless  his  illegality  was  a  cause  directly 
contributing  to  the  injury.  Damon  v.  Scititate,  119  Mass.  66.  Smith 
V.  Gardner,  11  Gray,  418,  Dudley  v.  Northampton  Street  Railway, 
202  Mass.  443,  446.    Moran  v.  Dickinson,  204  Mass  559. 

The  only  matter  which  seems  to  be  left  doubtful  under  our  dc- 


^  Compare  the  statement  of  the  same  judge  twenty-three  years  earlier  in 
Newcomb  v.  Boston  Protective,  146  Mass.  596  (1888),  "It  may  be,  where  a 
penal  statute  does  not  purport  to  create  a  civil  liability,  or  to  protect  the 
rights  of  particular  persons,  that  a  violation  of  it  will  not  subject  the 
violator  to  an  action  for  damages,"  but  see  IVatts  v.  Montgomery  Trac.  Co., 
175  Ala.  102  (1912),  holding  that  in  order  that  a  plaintiff  shall  be  barred 
from  recovery  by  a  violation  of  a  statute,  not  only  must  "the  violation  con- 
tribute to  his  injury  but  the  statute  must  also  have  been  enacted  for  the 
benefit  of  the  party  who  seeks  to  invoke  its  violation  as  distinguished  from 
the  public  generallv."  with  which  compare  Southern  R.  Co.  v.  Rice,  115  Va. 
235  (1913)  and  Weller  v.  Chicago,  M.  c^  St.  P.  R.  Co.,  120  Mo.  635  (1893). 

='See  Southern  R.  Co.  v.  Rice,  115  Va.  235  (1913),  and  Weller  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  120  Mo.  635  (1893). 


BOURNE  Z'.   WHITMAN.  1439 

cisions  in  this  class  of  cases,  is  what  constitutes  "illegality,"  which 
is  sometimes  a  directly  contributing-  cause  of  the  injury.  Some  cases 
have  been  decided,  which  seem  to  imply  that  if  there  is  an  illegal 
element  entering  into  a  plaintiff's  act  or  conduct,  and  this  act  or 
conduct  directly  contributes  to  his  injury,  he  can  not  recover,  al- 
though the  illegal  element  or  the  objectionable  quality  of  the  act 
had  no  tendency  to  produce  the  injury,  and  the  consequences  would 
have  been  the  same  under  the  other  existing  conditions,  if  the  crim- 
inal element  had  been  absent.  Another  decision  seems  to  turn  upon 
whether  the  criminal  element  in  the  act  or  conduct,  considered  by 
itself  alone,  operated  as  a  direct  cause  to  produce  a  result  that  would 
not  have  been  produced  under  the  same  conditions  in  other  respects, 
if  the  criminal  element  had  been  absent.  This  latter  seems  to  be 
the  pivotal  question  in  most  cases  decided  in  other  States. 

The  fact  that  the  number  of  punishable  misdemeanors  has  multi- 
plied many  times  in  recent  years,  as  the  relations  of  men  in  business 
and  society  have  grown  complex  with  the  increase  of  population,  is 
a  reason  why  the  violation  of  a  criminal  statute  of  slight  importance 
should  affect  one's  civil  rights,  except  when  this  violation,  viewed 
in  reference  to  the  element  of  criminality  intended  to  be  punished, 
has  had  a  direct  effect  upon  his  cause  of  action.  Our  decisions  seem 
to  have  been  tending  toward  the  adoption  of  such  a  rule.  IVclch  v. 
Wesson,  6  Gray,  505.  Spofford  v.  Harlozv,  3  Allen,  176.  Steele  v. 
Burkhardt,  104  Mass.  59,  Damon  v.  Scitnate,  119  Mass.  66.  Hall 
V.  Ripley,  119  Mass.  135.  Dudley  v.  Northampton  Street  Railway, 
202  Mass.  443,  446.  Moran  v.  Dickinson,  204  Mass.  559,  562.  Chase 
V.  Neiv  Yotk  Central  &  Hudson  River  Railroad,  208  Mass.  137,  157. 

Under  particular  statutes,  we  are  brought  back  to  the  question, 
what  is  the  legal  element  which  is  the  essence  of  the  command  or 
prohibition?  In  most  cases,  the  effect  of  doing  or  failing  to  do 
that  which  the  law  forbids  or  requires  under  a  penalty,  when  con- 
sidered in  reference  to  its  relation  to  one's  civil  rights  in  collateral 
matters,  ought  to  be  limited  pretty  strictly.  Take  the  case  of  driv- 
ing without  sleighbells  in  violation  of  the  law  of  the  road.  R.  L. 
c.  54,  §  3.  Kidder  v.  Dunstable,  11  Gray,  342,  Counter  v.  Couch, 
8  Allen,  436,  437.  The  requirement  of  the  law  is  that  "Xo  person 
shall  travel  on  a  bridge  or  way  with  a  sleigh  or  sled  drawn  by  a 
horse,  unless  there  are  at  least  three  bells  attached  to  some  part  of 
the  harness."  The  wrong  to  be  prevented  is  the  failure  to  have 
bells  while  travelling  in  this  way.  The  travelling  in  other  respects 
is  unobjectionable.  The  question  arises  whether  the  act  should  be 
deemed  illegal  as  a  whole,  in  reference  to  the  rule  that  the  courts 
will  not  aid  one  to  obtain  the  fruits  of  his  disobedience  of  law,  c. 
whether  in  this  aspect  its  different  qualities  may  be  considered  sep- 
arately. It  is  possible  to  decide  this  question  either  way,  but  we 
think  it  is  more  consistent  with  justice  and  with  the  course  of  de- 
cision elsewhere,  to  hold  that,  in  reference  to  the  law  of  negligence 
and  the  rule  as  to  rejection  of  causes  of  action  that  are  founded 
on  illegality,  an  act  may  be  considered  in  its  different  aspects  in 
its  relation  to  the  cause  of  action,  and  if  only  that  part  of  it  which 


T440  BOURNE  V.   WHITMAN. 

is  innocent  affects  the  cause  of  action,  the  existence  of  an  illegal 
element  is  immaterial.  We  do  not  think,  under  this  statute,  thai 
one  who  drives  in  a  sleigh  without  bells  should  be  treated  as  a  tres- 
passer on  the  highway,  although  he  is  punishable  criminally  for 
the  failure  to  have  the  bells  attached  to  the  harness,  and  is  liable 
in  damages  to  any  member  of  the  public  who  suffers  a  special  in- 
jury by  reason  of  this  failure. 

Consider  the  St.  1909,  c.  514,  §  74,  which  forbids,  under  a 
])enalty,  the  regular  operation  of  any  elevator  by  a  person  under 
the  age  of  sixteen  years,  and  the  regular  operation  of  any  rapidly 
running  elevator  by  a  person  under  the  age  of  eighteen  years.  If 
■X  person  under  the  prescribed  age,  while  employed  to  operate  an 
elevator,  is  injured  through  the  negligence  of  the  pwner,  in  leav- 
ing it  in  an  unsafe  condition,  shall  his  violation  of  the  statute  by 
entering  this  service  before  reaching  the  prescribed  age,  be  treated 
as  criminality,  entering  into  every  one  of  his  acts  in  moving  the  ele- 
vator, so  as  to  prevent  his  recovery  for  an  injury  from  the  joint 
effect  of  his  employer's  negligence  and  his  own  application  of  the 
power  to  raise  or  lower  the  elevator?  We  think  it  better  to  hold, 
if  his  age  and  the  degree  of  his  competency,  which  might  depend 
in  part  upon  his  age,  had  no  causal  connection  with  the  injury, 
that  his  criminality  was  not  a  direct  cause  of  the  injury.  In  other 
words,  that  the  punishable  element  in  the  act  is  only  disobedience 
as  to  age,  and  although  his  act  in  applying  the  power  to  the  elevator 
which  brought  him  in  contact  with  the  defect,  is  punishable,  and 
in  a  sense  illegal  because  of  the  existence  of  that  element,  in  de- 
termining the  relation  of  his  conduct  to  the  cause  of  action,  to  see 
whether  the  court  will  aid  him  in  the  prosecution  of  it,  we  ought 
to  limit  the  illegality  to  that  part  of  his  conduct  towards  which  the 
statute  is  particularly  directed.  We  are  to  consider  the  specific  thing 
at  which  the  statute  is  aimed,  and  the  immediate  effect  that  it  was 
intended  directly  and  proximately  to  accomplish  by  its  command 
or  prohibition.  A  question  of  this  kind  arose  in  Murphy  v.  Russell. 
202  Mass.  480,  but  it  was  not  referred  to  in  the  opinion.as  the  case 
was  decided  on  other  grounds.  Substantially  this  question  was  de- 
cided in  Moran  v.  Dickinson,  204  Mass.  559. 

Take  the  provision  in  St.  1903.  c.  473,  §  5,  that  "No  person 
shall  operate  an  automobile  or  motorcycle  for  hire,  unless  speci- 
fically licensed  by  the  commission  so  to  do,"  and  the  earlier  pro- 
vision in  the  same  section  that  no  person  shall  "operate  an  auto- 
mobile or  motorcycle  upon  any  public  highway  or  private  way  laid 
out  under  authority  of  statute  unless  licensed  so  to  do  under  the 
provisions  of  this  act."  The  operating  of  the  automobile  in  itself 
is  unobjectionable.  The  illegal  element  in  the  act  is  the  failure  to_ 
have  a  license.  The  purpose  of  the  requirement  of  a  license  is  to 
secure  competency  in  the  operator.  If  in  any  case  the  failure  to 
have  a  license,  looking  to  those  conditions  that  ordinarily  accom- 
pany the  failure  to  have  it,  is  a  cause  contributing  directly  to  an 
injury,  a  violator  of  the  law  would  be  legally  responsible  to  another 
person  injured  by  the  failure;  or,  if  he  is  injured  himself,  would 


C0UKX1-:  Z'.   WHITMAN'.  I44I 

be  precluded  from  recovery  against  another  person  who  neghgentl}- 
contributed  to  the  injury.  But  we  are  of  opinion  that  his  failure 
in  that  respect  is  only  evidence  of  negligence  in  reference  to  his 
fitness  to  operate  a  car,  and  to  his  skill  in  the  actual  management 
of  it,  unless  in  the  case  of  the  plaintiff,  it  is  shown  to  be  a  contribut- 
ing cause  to  the  injury  sued  for,  in  which  case  it  is  a  bar  to  recov- 
ery.* We  think  that  the  operation  of  a  car  without  a  license,  while 
it  is  a  punishable  act,  does  not  render  the  operator  a  trespasser  on 
the  highway,  but  that  the  illegal  element  in  the  act  is  only  the  fail- 
ure to  have  a  license  while  operating  it,  so  that  if  the  operation 
and  movement  contributed  to  the  accident  with  which  the  want  of 
a  license  had  no  connection,  except  as  a  mere  condition,  they  would 
not  preclude  the  operator  .as  a  plaintiff  from  recovery.  If  the  ille- 
gal quality  of  the  act  had  no  tendency  to  cause  the  accident,  the 
fact  that  the  act  is  punishable  because  of  the  illegality,  ought  not 
to  preclude  one  from  recovery  for  harmful  results  to  which,  with- 
out negligence,  the  innocent  features  of  the  act  alone  contributed. 

The  other  part  of  this  statute,  relative  to  the  licensing  of  auto- 
mobiles, has  been  construed  differently.  In  Dudley  v.  Northampton 
Street  RaUzvay,  202  Mass.  443,  because  of  the  peculiar  provisions 
of  the  statute  and  the  dangers  and  evils  that  it  was  intended  to 
prevent,  it  was  decided,  after  much  consideration,  that  the  having 
of  such  a  machine  in  operation  on  the  street,  without  a  license,-^' 
was  the  very  essence  of  the  illegality  and  that  the  illegality  was 
inseparable  from  the  movement  of  the  automobile  upon  the  street 
at  any  time,  for  a  single  foot ;  that  in  such  movement  the  machine 
was  an  outlaw,  and  any  person  on  the  street  as  an  occupant  of  the 
automobile,  participating  in  the  movement  of  it,  was  for  the  time 
being  a  trespasser.*^  Some  of  us  were  disinclined  to  lay  down  the 
law  so  broadly,  and  the  opinion  of  the  court  was  not  unanimous ; 
but  the  doctrine  has  been  repeatedly  reaffirmed  and  is  now  the  es- 
tablished law  of  the  Commonwealth,  Feeley  v.  Melrose,  205  Mass. 
329.  Chase  v.  A^ezv  York  Central  and  Hudson  River  Railroad,  208 
Mass.  137,  isS.'^     The  difference  between  this  provision  of  the  stat- 


*  See  Conroy  v.  Mather,  104  N.  E.  487  (Mass.  1914). 

^The  plaintiff  in  Dudley  v.  Ry.  was  the  owner  of  an  automobile  in  Con- 
necticut and  his  property  was  properly  registered  in  that  state.  The  statute 
allowed  residents  of  other  states  to  drive  their  automobiles  in  Massachusetts 
for  a  space  of  fifteen  days  without  obtaining  a  Massachusetts  registration. 
The  accident  occurred  on  the  sixteenth  day  after  the  plaintiff  had  entered 
Massachusetts  and  one  of  the  questions  presented  in  the  case  was  whether 
under  the  special  circumstances  his  fifteen  days  had  expired. 

°  Compare  Johnson  v.  Irnsburgh,  47  Vt.  28  (1874),  cited  in  note  to  Platz 
v.  Cohocs,  post,  and  see  Seaboard  Air  Line  R.  Co.  v.  Chapman,  4  Ga.  App. 
707  (1908),  where  it  was  held  that  the  defendant  railway  owed  no  duty  of 
careful  operation  to  one  of  its  engineers  who  was  trying  to  enter  the  cab  of 
his  engine  when  drunk,  which  was  by  statute  a  criminal  offense. 

''In  Feeley  v.  Melrose,  205  Mass.  329  (1910),  the  plaintiffs  were  the 
owner  and  the  guests  in  an  automobile  recentlj  purchased,  which  remained 
registered  under  the  name  of  the  original  owner;  while  in  Chase  v.  Nezv 
York  Central  &  H.  R.  R.  Co..  208  Mass.  137  (1911)_.  there  was  a  somewhat 
similar  situation.  In  Chase  v.  N.  Y.  R.  Co.,  the  plaintiff  was  injured  bv  a  col- 
lision at  a  level  crossing  by  the  improper  operation  of  the  train  crossing  the 


1442  PLATZ   V.    CITY   OF   COHOES. 

ute  and  that  involved  in  the  present  case  is  in  part  one  of  form, 
but  in  connection  with  the  form,  it  is  still  more  the  seeming  pur- 
pose and  intent  of  the  Legislature  as  to  permitting  such  machines 
upon  the  public  ways  without  adequate  means  of  identifying  them 
and  ascertaining  their  owner,  together  with  the  requirement,  that 
the  machine  itself,  as  a  thing  of  power,  shall  have  its  own  regis- 
tration and  legalization,  the  evidence  of  which  it  shall  always  carry 
with  it.  In  the  last  of  the  cases  cited  in  this  language :  "Under 
the  decisions,  the  operation  of  the  unregistered  automobile  is  deemed 
to  be  unlawful  in  every  feature  and  aspect  of  it.  Everything  in 
the  conduct  of  the  operator  that  enters  into  the  propulsion  of  the 
vehicle  is  under  the  ban  of  the  law."  -^  *  *  ("In  going  along 
the  way  *  *  *  the  machine  is  an  outlaw."^)  "The  operator, 
in  running  it  there  and  thus  bringing  it  into  collision  with  the  lo- 
comotive engine,  is  guilty  of  conduct  which  is  permeated  in  every 
part  by  his  disobedience  of  the  law,"  ("and  which  directly  contrib- 
utes to  the  injury"). 

We  are  of  opinion  that  the  law  of  these  last  cases  should  not  be 
extended  to  the  provision  of  the  statute  requiring  every  operator 
to  have  a  personal  license  to  operate  the  car.  .The  jury  should  have 
been  instructed  that  the  defendant's  failure  to  have  a  license  was 
only  evidence  of  his  negligence  as  to  the  management  of  the  car. 

Exceptions  sustained. 


^^X 


PLATZ  V.  THE  CITY  OF  COHOES. 
Court  of  Appeals  of  New  York,  1882.    89  .V.  Y.  219. 


Danforth,  J.  The  defendant  made  an  excavation  in  one  of 
its  public  streets,  and  neither  removing  or  leveling  the  earth  taken 
therefrom,  left  it  in  the  way.  While  the  respondent  was  riding  with 
her  husband,  the  carriage  in  which  they  w^ere  was,  without  care- 
lessness on  the  part  of  either,  upset  by  the  pile  of  earth,  and  she 
was  injured.  That  the  street  was  defective  through  the  culpable 
omission  of  duty  on  the  part  of  the  defendant  is  not  denied,  but 


highway  on  which  he  was  travelHng,  while  in  Fcely  v.  Melrose,  the  automo- 
bile fell  into  an  obstruction  in  the  highway  and  the  action  was  brought  against 
the  town.  In  H olden  v.  McGilUcuddy,  215  Mass.  563  (1913),  the  court  fol- 
lowed the  principal  case  in  an  action  for  injuries  received  in  Vermont  where 
a  similar  statute  was  in  force. 

Contra:  Atlantic  Coast  Line  R.  Co.  v.  Weir,  63  Fla.  69  (1912)  and 
Lockridge  v.  Minneapolis  &  St.  L.  R.  Co.,  140  N.  W.  834  (Iowa  1913),  in 
both  of  which  states  the  provisions  of  the  respective  statutes  being  practi- 
cally identical  with  the  Massachusetts  statute ;  in  Hemming  v.  New  Haven,  82 
Conn.  661  (1910),  the  owner  of  an  unregistered  automobile  was  allowed  to 
recover  for  injuries  received,  due  to  the  bad  condition  of  the  highway,  but 
the  court  distinguishes  the  case  in  hand  from  the  principal  case  on  the  ground 
that  the  Connecticut  statute  did  not  prohibit  the  use  of  unregistered  automo- 
biles upon  public  highways  but  merely  imposed  a  penalty  for  their  use. 

*  Even  the  owner  or  occupant  of  an  imrcgistered  automobile  has  the  same 
rights  as  other  trespassers  in  Massachusetts  to  be  "exempt  from  reckless, 
wanton,  or  wilful  injury,"  Dudley  v.  Northampton  St.  R.  Co. 


PLATZ  V.    CITY   OF   COHOES.  1 443 

the  accident  happened  on  Sunday,  and  the  learned  counsel  for  the 
appellant  claims  that  it  owed  no  duty  to  the  plaintilT  to  keep  its 
streets  in  repair  on  that  day,  because  it  did  not  appear  that  she 
was  then  traveling  "either  from  necessity  or  charity,"  nor  for  any 
purpose  permitted  by  the  law.  It  is  plain,  therefore,  that  she  was 
violating  the  statute  relating  to  the  "observance  of  Sunday"  ( i  R. 
S.  628,  title  8,  chap.  20,  art.  8,  §  70),  but  we  do  not  perceive  how 
that  fact  relieves  the  defendant. 

It  imposed  an  obligation  upon  the  plaintiff  to  refrain  from 
traveling,  and  for  its  violation  prescribed  a  forfeiture  of  one  dollar. 
It  also  declares  that  upon  complaint  made  before  a  magistrate,  and 
conviction  had,  that  sum  might  be  collected  by  distress  and  sale  of 
the  goods  and  chattels  of.  the  offender,  or  if  sufficient  could  not  be 
found,  she  might  be  "committed  to  the  common  jail  for  not  less 
than  one  or  more  than  three  days."  The  statute  goes  no  further, 
and  we  are  aware  of  no  principle  upon  which  it  can  be  held  that 
the  right  to  maintain  an  action  in  respect  of  special  damage  result- 
ing from  the  omission  of  a  defendant  to  perform  a  public  duty  is 
taken  away  because  the  person  injured  was  at  the  time  disobeying 
a  positive  law.  In  Carroll  v.  Staten  Island  R.  R.  Co.  (58  N.  Y.  126 ; 
17  Am.  Rep.  221),  an  action  by  a  passenger  against  a  carrier  to 
recover  damages  for  injuries  received  through  its  carelessness,  this 
court  held  that  the  fact,  "that  the  plaintiff  was  at  the  time  of  the 
injury  traveling  contrary  to  the  statute,"  was  no  defense  to  the  ac- 
tion. The  policy  of  the  statute  and  its  limitations  were  then  con- 
sidered, an4,the  court  refused  to  add  to  the  penalty  imposed  by  it 
a  forfeiture  of  the  right  to  indemnity  for  an  injury  resulting  from 
the  defendant's  negligence. 

The  Sunday  law  received  a  similar  construction  in  Phila.,  Wil. 
&  Bait.  R.  R.  Co.  V.  Phila.  &  Havre  de  Grace  Steam  Towboat  Co. 
(23  How.  U.  S.  Sup.  Ct.  Rep.  209),  the  court  holding  that  the 
offender,  the  plaintiff  in  the  action,  was  liable  to  the  fine  or  penalty 
imposed  thereby,  and  nothing  more,  saying  "We  do  not  feel  justified, 
therefore,  on  any  principles  of  justice,  equity,  or  of  public  policy, 
in  inflicting  an  additional  penalty  of  $7,000  on  the  libelants,  by 
way  of  set-off,  because  their  servants  may  have  been  subject  to  a 
penalty  of  twenty  shillings  each  for  breach  of  the  statute."  To  the 
same  effect  is  Baldunn  v.  Barney  (12  R.  1.  392;  34  Am.  Rep.  670). 

It  may  indeed  be  said  that  if  the  plaintiff  had  obeyed  the  law, 
remained  at  home,  and  not  traveled,  the  accident  would  not  have 
happened.  That  is  not  enough.  The  same  obedience  to  the  law 
would  have  saved  the  plaintiffs  in  the  cases  just  cited.  It  must 
appear  that  the  disobedience  contributed  to  the  accident,  or  that  the 
statute  created  a  right  in  the  defendant,  which  it  could  enforce. 
But  the  object  of  the  statute  is  the  promotion  of  public  order,  and 
not  the  advantage  of  individuals.  The  traveler  is  not  declared  to 
be  a  trespasser  upon  the  street,  nor  was  the  defendant  appointed 
to  close  it  against  her.  In  such  an  action  the  fault  which  prevents 
a  recovery  is  one  which  directly  contributes  to  the  accident ;  as  care- 
lessness in  driving,  either  a  vicious  or  unmanageable  horse,  or  at 


1444  PLATZ  V.   CITY   OF   COHOES. 

an  improper  rate  of  speed,  or  without  observation  of  the  road,  or 
in  an  insufficient  vehicle,  or  with  a  defective  harness,  or  in  a  state  of 
intoxication,  or  under  some  other  condition  of  driver,  horse  or  car- 
riage, which  may  be  seen,  to  have  brought  about  the  injury. 

It  may  doubtless  be  said  that  if  the  plaintiff  had  not  traveled, 
she  would  not  have  been  injured;  and  this  will  apply  to  nearly 
every  case  of  collision  or  personal  injury  from  the  negligence  or 
wilful  act  of  another.  Had  the  injured  party  not  been  present  he 
would  not  have  been  hurt.  But  the  act  of  travel  is  not  one  which 
usually  results  in  injury.  It,  therefore,  can  not  be  regarded  as  the 
immediate  cause  of  the  accident,  and  of  such  only  the  law  takes 
notice.  At  common  law  the  act  was  not  unlawful,  and  the  plain- 
tiff was  still  under  its  protection,  and  may  resort  to  it  against  a 
wrong-doer  by  whose  act  she  was  injured.  This  has  been  held  in 
many  cases  where  the  person  injured  was  at  the  time  doing  an  act 
prohibited  by  the  city  ordinance  or  general  statute  {Steele  v.  Bnrk- 
hardt,  104  Mass.  59 ;  Welch  v.  Wesson,  6  Gray,  505  ;  N orris  v.  Litch- 
field, 35  N.  H.  271),  and  even  violating  the  law  now  in  question, 
or  one  similar  to  it.  Carroll  v.  Staten  Island  Co.,  and  Phila.,  Wil. 
&  Bait.  R.  R.  Co.  V.  Phila.  &  Havre  de  Grace  Toivhoat  Co.  have  al- 
ready been  referred  to.  (See,  also,  Schmid  v.  Humphreys,  48  Iowa, 
652;  30  Am.  Rep.  414.) 

Sutton  V.  The  Tozvn  of  Wauzvatosa  (29  Wis.  21  ;  9  Am.  Rep. 
534)  is  in  point,  not  only  in  its  circumstances  but  in  the  relations 
of  the  parties.  The  plaintiff  was  driving  his  cattle  to  market  on 
Sunday,  and  they  were  injured  by  the  breaking  down  of  a  defective 
bridge  which  the  defendant,  through  negligence,  had  failed  properly 
to  maintain.  The  Sunday  statute  was  relied  upon,  but  the  town  was 
held  liable. 

There  are,  as  the  counsel  for  the  appellant  contends,  author- 
ities the  other  way.  Decisions  by  very  eminent  and  learned  courts. 
In  Vermont.  {Johnson  v.  Town  of  Irasburgh,  47  Vt.  28;  19  Am. 
Rep.  Ill  ;  Holcomb  v.  Tozun  of  Danby,  51  Vt.  428.)  In  Massachu- 
setts. (Bosworth  V.  Sivansey,  10  Mete.  363 ;  Jones  v.  Andover,  10 
Allen,  18.)  And  immunity  is  also  given  by  that  court,  under  the 
same  statute,  to  a  railroad  corporation  through  whose  negligence 
the  plaintiff  was  injured.  {Smith  v.  Boston  &  Maine  R.  R.,  120 
Mass.  490;  21  Am.  Rep.  538.)  But  the  decisions  already  made  by 
us  {Merritt  v.  Earle,  29  N.  Y.  115  ;  JVood  v.  Erie  Ry.  Co.,  72  id.  196 ; 
28  Am.  Rep.  125 ;  Carroll  v.  Staten  Island  R.  R.  Co.,  supra)  are  in 
the  contrary  direction,  and  are  sustained,  we  think,  by  reasons  of 
justice  and  public  policy.  In  Baldwin  v.  Barney  (supra)  a  question 
arising  under  the  Sunday  laws  of  Massachusetts  came  before  the 
court  in  an  action  by  one  injured  in  that  State,  while  traveling  on 
Sunday,  by  the  reckless  driving  of  one  also  traveling.  On  the  trial  the 
plaintiff  was  nonsuited,  but  on  appeal  the  Massachusetts  cases  are 
reviewed  and  disapproved,  and  after  a  very  deliberate  discussion 
of  the  decisions  in  that  and  other  states  the  court  held  that  the  de- 
fendant could  not  show  the  illegality  of  the  plaintiff's  act  as  a  de- 
fense, and  the  nonsuit  was  set  aside.    There  will  be  seen  great  con- 


SMITIIWICK   V.    HALL   &    UPSON    CO.  1445 

Rict  in  decided  cases,  Init  the  weight  of  authority  seems  to  favor 
the  conclu.'iion  reached  hy  us.  (Cooley  on  Torts,  !^  157;  Wharton 
on  Negligence,  ^  331.) 

This  result  disposes  of  the  appellant's  objections,  for  they  all 
rest  on  the  assumption  that  as  one  could  not  lawfully  travel  on  Sun- 
day, there  was  negligence  either  of  the  plaintiff  or  her  husband,  and 
if  of  the  latter,  that  it  was  to  be  imputed  to  her. 

It  is  not  necessary  to  consider  whether,  if  a  different  condition 
had  been  established,  the  negligence  of  the  husband  in  those  respects 
could  have  been  imputed  to  the  wife.  The  defense  relied  upon,  was 
the  Sunday  law,  and  as  it  is  not  available,  the  judgment  appealed 
from  should  be  affirmed  with  costs. 

All  concur,  except  Finch,  J.,  taking  no  part,  and  Tracy,  J.,  ab- 
sent. 

Judgment  affirmed.^ 

^^*  CHAPTER  IV. 

Causal  Connection  Between  the  Plaintiff's  Conduct  and  Injury. 


SMITHWTCK  V.  HALL  &  UPSON  CO. 
Supreme  Court  of  Errors  of  Connecticut,  1890.     59  Conn.  261. 

Torrance,  J.  The  general  question  re.served  for  our  advice  in 
this  case,  is,  whether  the  plaintiff  upon  the  facts  found  is  entitled 
to  the  substantial  damages  or  only  to  the  nominal  damages  found 
by  the  court  below. 

Inasmuch  as  the  court  has  expressly  found  that  the  negligence 

^Accord:  the  following  cases  hold  that  one  travelling  on  Sunday  may 
recover  for  injuries  received  from  the  bad  condition  of  the  highway  or  by 
the  negligence  of  fellow  travellers  or  others.  Black  v.  Lezviston,  2  Idaho  276 
(1887)  :  Kansas  Citv  v.  Orr.  62  Kans.  61  (1900)  ;  Corev  v.  Bath.  35  X.  11.  530 
(1857)  ;  Mohncv  v.' Cook,  26  Pa.  342  (1855)  ;  Sutton  v.  JVauzmtosa,  29  Wis. 
21  (1871):  Sclimid  v.  Htiwfhrev.  48  Iowa  652  (1878);  Dclaivare  L.  &  IV. 
R.  Co.  V.  Trautwein.  52  X.  J.  L.  169  (1889)  ;  Baldwin  v.  Barney,  12  R.  I.  392 
(1879)  ;  Knowlton  v.  Milwaukee  R.  Co.,  59  Wis.  278  (1884).  So  a  passenger 
travelling  on  Sunday  may  recover  for  injuries  due  to  the  negligence  of  his 
carrier,  though  the  contract  of  carriage  is  illegal;  Chicago  St.  Louis  &  Pitts- 
burgh R.  Co.  V.  Graham,  3  Ind.  App.  28  (1891)  ;  Opsahl  v.  Judd,  30  Minn.  126 
(1883).  nor  is  it  a  bar  to  recovery,  whether  against  a  master  or  others,  that 
the  plaintiff  was  working  on  Sunday,  Atlanta  Steel  Co.  v.  Hughes.  136  Ga. 
511  (1911)  ;  Tavlor  v.  Star  Coal  Co..  110  Iowa  40  (1899)  :  Illinois  Cent.  R. 
Co.  V.  Dick:9\  kv.  434  (1891)  ;  Louisville  New  Albany  &  Chicago  R.  Co.  v. 
Buck,  116  Ind.  566  (1888),  and  Hoadley  v.  International  Paper  Co.,  72  Vt.  79 
(1899). 

Contra:  the  Massachusetts  cases  cited  in  the  opinion  of  Knowlton.  C. 
T.  in  Bourne  v.  Witman,  post:  Hinckley  v.  Penobscot.  42  Maine  89  (1856); 
Bryant  v.  Biddeford.  39  Maine  193  (1855)  ;  compare  with  the  last  two  cases 
Baker  v.  Portland,  58  Maine  199  (1870).  as  to  which  see  Beachaw  v.  Ports- 
mouth Bridge.  68  N.  H.  382  (1895).  In  Johnson  v.  Irasburgh,  XI  Vt.  28 
(1874).  the  court,  while  following  the  reasoning  of  the  principal  case  to_  the 
effect  that  travelling  on  Sundav  is  a  condition  and  not  a  cause  of  an  injury 
sustained  by  a  defect  in  a  highway  and  that  travelling  on  Sunday  being  an 


1446  SMITHWICK   V.    HALL   &   UPSON    CO. 

of  the  defendant  caused  or  contributed  to  the  injury  for  which  the 
plaintiff  seeks  to  recover,  the  decision  of  the  above  general  question 
depends  upon  this  single  point,  namely,  w^hether  the  acts  and  con- 
duct of  the  plaintiff  as  set  forth  upon  the  record  constitute  or  amount 
to  such  contributory  negligence  on  his  part  as  will  bar  his  right  to 
substantial  damages.  The  facts  found,  so  far  as  they  bear  upon  the 
question  for  decision,  are  in  substance  the  following: — 

The  plaintiff  was  a  workman  in  the  service  of  the  defendant, 
and  at  the  time  of  the  injury  complained  of  was  engaged  in  helping 
to  store  ice  for  the  defendant  in  a  certain  brick  building.  In  doing 
this  work  the  plaintiff  stood  upon  a  platform  about  five  feet  wide 
and  seventeen  feet  long,  raised  fifteen  feet  above  the  ground,  and 
extending  from  the  west  side  of  the  building  easterly  to  a  point 
about  two  feet  east  of  the  door  or  aperture  through  which  the  ice 
was  taken  into  the  building.  A  stout  plank  of  suitable  height  and 
strength  extended  along  the  outer  side  of  the  platform  as  far  as 
the  west  side  of  the  door  and  served  as  a  .protective  railing  or  guard 
to  that  portion  of  the  platform.  In  front  of  the  door  and  east  of 
it  the  platform  was  without  guard  or  railing  of  any  kind.  A  short 
time  prior  to  the  injury  the  foreman  of  the  defendant  stationed  the 
plaintiff  on  the  platform  just  west  of  the  door  and  inside  the  rail- 
ing, and  showed  him  what  his  duties  were  there,  and  told  him  "not 
to  go  upon  the  east  end  of  the  platform  east  of  the  slide  and  door, 
as  it  was  not  safe  to  stand  there.''  He  did  not  tell  the  plaintiff  why 
it  was  not  safe,  but  the  danger  which  he  had  in  mind  was  the  nar- 
rowness and  unrailed  condition  of  the  platform  and  the  liability  by 
inadvertence  to  misstep  or  fall  or  slip  off,  the  latter  being  aggra- 
vated by  the  liability  of  the  platform  to  become  slippery  from  broken 
ice.  These  dangers  were  all  manifest.  The  peril  resulting  from  the 
accident  which  happened  to  the  building  was  not  in  contemplation. 

After  the  foreman  went  away  the  plaintiff,  in  spite  of  the  or- 
ders so  given  him,  and  for  reasons  of  his  own  apparently,  went 
over  to  the  east  end  of  the  platform  and  worked  there.  It  is  found 
that  there  was  no  sufficient  reason  or  excuse  for  the  change  of  po- 
sition. One  of  his  fellow  workmen,  seeing  the  plaintiff  in  that  place, 
told  him  that  "it  was  not  safe,  and  to  stand  on  the  other  side,"  but  the 
plaintiff,  notwithstanding  such  warning,  remained  at  work  there. 

While  so  at  work  the  brick  wall  of  the  building  above  the  plat- 
form, in  consequence  of  the  negligence  of  the  defendant,  gave  way, 
the  brick  falling  upon  the  platform  and  thence  to  the  ground.  The 
plaintiff  was  struck  by  portions  of  the  descending  mass  and  fell  to 
the  earth.  He  was  either  knocked  Off,  or  his  fall,  in  the  condition 
in  which  he  stood,  was  inevitable ;  indeed,  had  he  not  fallen  when 
he  did,  his  injuries,  which  were  very  serious,  would  have  been  worse. 

offense  not  against  a  town,  but  against  public  morals,  should  not  entail  a  for- 
feiture of  the  right  of  action,  holds  that  the  liability  of  the  Vermont  towns 
to  maintain  their  highway  in  repair,  being  imposed  by  statute,  extends  only  to 
such  persons  as  are  lawfully  travelling  thereon  and  so  the  town  owes  no  duty 
of  this  sort  to  persons  travelling  on  Sundav.  Compare  with  this  case  Holly 
V.  International  Paper  Co.,  79  Vt.  79  (1899). 


SMITIIWICK   V.    HALL    &    UPSOX    CO.  1447 

Most  of  the  injuries  which  he  actually  sustained  were  occasioned 
by  the  fall. 

The  plaintiff  had  no  knowledge  that  the  wall  would  be  likely 
to  fall  or  was  in  any  way  unsafe,  and  it  is  found  that  "no  fault  or 
negligence  can  be  imputed  to  him  in  this  regard." 

In  contemplation  of  the  peril  from  the  falling  wall,  it  is  found 
that  "the  spot  where  the  plaintiff  stood  could  not  have  been  con- 
sidered more  dangerous  than  the  place  where  he  was  directed  to 
stand,  though  in  fact  most  of  the  brick  fell  upon  the  side  where  he 
stood,  and  the  result  demonstrated  therefore  that  the  other  side 
would  have  been  safer  in  the  event  which  occurred." 

Upon  these  facts  the  defendant  contends  that  the  plaintiff,  in 
going  to  and  remaining  pn  the  east  end  of  the  platform,  contrary 
to  the  orders  and  in  spite  of  the  warning  given  him,  and  in  view 
of  the  obvious  and  manifest  danger  in  so  doing,  was  guilty  of  such 
contributory  negligence  as  bars  him  of  his  right  to  recover  more 
than  nominal  damages. 

If  the  plaintiff's  injuries  had  resulted  from  any  of  the  perils 
and  dangers  attendant  upon  the  mere  fact  of  his  standing  and  work- 
ing on  the  east  end  of  the  platform,  which  were  obvious  and  mani- 
fest to  any  one  in  his  place,  which  were  in  the  mind  of  the  foreman 
when  he  told  the  plaintiff'  not  to  go  there,  and  in  view  of  which  his 
fellow  workman  warned  him,  then  this  claim  of  the  defendant  would 
be  a  valid  one.     But  upon  the  facts  found  it  is  without  foundation. 

The  injury  to  the  plaintiff  was  not  the  result  of  any  such  dan- 
gers, but  was  caused  through  the  negligence  of  the  defendant  by 
the  falling  w^lls.  This  was  a  source  ©f  danger  of  which  he  had 
no  knowdedge  whatever.  He  w-as  justified  in  supposing  that  the 
wall  was  safe  and  would  not  be  likely  to  fall  upon  him,  no  matter 
where  he  stood  on  the  platform.  He  had  no  reason  to  anticipate 
even  the  slightest  danger  from  that  source  before  or  after  he  changed 
his  position.  This  being  so,  he  could  be  guilty  of  no  negligence  with 
respect  to  this  source  of  danger  by  changing  his  position  contrary  to 
orders ;  for  negligence  presupposes  a  duty  oi  taking  care,  and  this  in 
turn  presupposes  knowledge  or  its  legal  equivalent. 

With  respect  to  that  danger  the  plaintiff  upon  the  facts  found 
must  be  held  to  have  acted  as  any  reasonably  careful  man  would 
have  acted  under  the  same  circumstances.  In  changing  his  posi- 
tion contrary  to  orders  he  voluntarily  took  the  risk  of  all  perils  and 
dangers  which  a  man  of  ordinary  care  in  his  place  ought  to  have 
known  or  could  reasonably  have  anticipated;  but  as  to  dangers  aris- 
ing through  the  defendant's  negligence  from  other  sources — dan- 
gers which  he  was  not  bound  to  anticipate  and  of  whose  existen'ro 
he  had  no  knowdedge,  he  took  no  risk  and  assumed  no  duty  of  tak- 
ing care.  It  was  the  duty  of  the  defendant  on  the  facts  found  to 
warn  the  plaintiff  against  the  danger  from  the  falling  wall. 

Now  the  act  of  omission  of  a  party  injured  which  amounts  to 
what  is  called  contributory  negligence,  must  be  a  negligent  act  or 
omission,  and  in  the  production  of  the  injury  it  must  operate  as 


I44C 


SMITHWICK   t'.    HALL    &    UPSOX    CO. 


a  proximate  cause  or  one  of  the  ]M-oxiniate  causes,  and  not  merel\ 
as  a  condition. 

'"  imhe  case  at  bar  the  conduct  of  the  plaintiff,  as  we  have  seen, 
was,  with  respect  to  the  danger  from  the  falling  wall,  not  negligent 
for  the  want  of  knowledge  or  its  equivalent  on  the  part  of  the 
plaintiff. 

Nor  was  his  conduct,  legally  considered,  a  cause  of  the  injury. 
It  was  a  condition  rather. 

If  he  had  not  changed  his  position  he  might  not  have  been 
hurt.  And  so  too  if  he  had  never  been  born,  or  had  remained  at 
home  on  the  day  of  the  injury,  it  would  not  have  happened;  yet 
no  one  would  claim  that  his  birth  or  his  not  remaining  at  home 
that  day,  can  in  any  just  or  legal  sense  be  deemed  a  cause  of  the 
injury. 

The  court  below  has  found  that  the  plaintiff's  fall  in  the  posi- 
tion in  which  he  stood  was  due  to  the  giving-way  of  the  wall,  and 
that  most  of  his  injuries  were  occasioned  by  the  fall.  His  position 
there,  upon  the  facts  found,  can  no  more  be  considered  as  a  cause 
of  the  injury,  than  it  could  be  in  a  case  where  the  defendant,  in 
doing  some  act  near  the  platform  without  the  plaintiff's  knowledge, 
had  negligently  knocked  him  to  the  ground,  or  had  negligently  hit 
him  with  a  stone.  Had  the  injury  been  occasioned  by  a  misstep 
or  slip  from  the  platform  by  the  carelessness  of  the  plaintiff,  or  for 
the  want  of  a  railing,  the  causal  connection  between  the  change  of 
position  and  the  injury  would,  legally  speaking,  be  ciuite  oljvious ; 
but  from  a  legal  point  of  view  no  such  connection  exists  between 
the  change  of  position  and  the  giving  way  of  the  wall. 

The  plaintiff  had  full  knowledge  of  and  was  abundantly  cau- 
tioned against  certain  particular  sources  of  peril  and  danger,  and 
he  voluntarily  neglected  the  warnings  and  took  the  risk  of  those 
perils  and  dangers.  He  was  injured  through  the  negligence  of  the 
defendant  from  an  entirely  dift'erent  source  of  danger,  of  which  he 
knew  and  could  know  nothing,  and  of  whose  existence  it  was  the 
duty  of  the  defendant  to  warn  him. 

Under  these  circumstances  the  failure  or  neglect  to  heed  the 
warning  does  not  constitute  contributory  negligence.  Gray  v.  Scott, 
66  Penn.  St.,  345. 

In  the  case  above  cited  certain  boys  had  been  warned  not  to 
play  at  a  certain  point  because  of  some  particular  and  obvious  dan- 
gers existing  there.  They  failed  to  heed  the  warning,  and  one  of 
them,  playing  at  that  place,  was  killed.  His  death  was  caused  by  the 
negligence  of  another  and  came  from  a  source  of  danger  not  obvious 
and  entirely  different  from  any  the  boys  had  been  warned  against. 

In  answering  the  argument  that  the  boy's  failure  to  heed  the 
warnings  was  a  cause  of  his  death  and  contributory  negligence, 
the  court  says : — "But  because  he  was  under  the  tramway  in  the 
passage  below  it  is  thought  he  was  guilty  of  contributorv  negligence. 
He  could  not  be  guilty  of  negligence  as  to  the  defendant  without 
there  was  some  reason  to  expect  danger  and  a  duty  of  care  on  hi- 
part  in  relation  to  it.    There  was  ordinarily  none.     He  had  a  right 


SMITHWICK  V.   HALL   &   UPSOX    CO.  1449 

therefore  to  suppose  everything  secure  and  safely  managed  on  the 
tramway,  and  because  it  was  not  he  was  killed.  Precisely  the  same 
argument  could  have  been  used  if  the  boy  had  been  killed  in  that 
place  by  the  negligent  use  of  firearms  discharged  a  hundred  yards 
off." 

The  defendant  seems  to  claim  however  that,  although  some  of 
the  plaintiff's  injuries  were  caused  by  falling  bricks,  yet  most  of 
them  were  caused  by  his  fall ;  and  that  as  he  probably  would  not 
have  fallen  had  he  remained  behind  the  railing,  he  contributed  to 
his  injury  by  placing  himself  where  in  case  of  such  accident  there 
was  nothing  to  prevent  his  fall. 

Whether  the  claim  that  he  would  probably  not  have  fallen  had 
he  remained  where  he  was  stationed  be  true  or  not,  must  forever 
remain  matter  of  conjecture.  But  if  its  truth  could  be  demonstrated 
it  would  not,  as  we  have  seen,  change  the  relation  of  the  plaintifif's 
act  to  the  the  legal  cause  of  his  injury,  or  make  that  act,  from  a  legal 
standpoint,  a  contributing  cause  when  it  was  but  a  condition.^ 

And  if  the  claim  means  that  the  j^laintifif  by  his  act  increased 
the  injury  merely,  then  if  this  were  true  it  would  not  be  such  con- 
tributory negligence  as  would  defeat  the  action.  To  have  that  effect 
it  must  be  an  act  or  omission  which  contributes  to  the  happening 
of  the  act  or  event  which  caused  the  injury.  An  act  or  omission 
that  merely  increases  or  adds  to  the  extent  of  the  loss  or  injury  will 
not  have  that  effect,  though  of  course  it  may  affect  the  amount  of 
damages  recovered  in  a  given  case.  Gould  v.  McKcnna,  86  Penn. 
St.,  297;  Stebpins  v.  Central  R.  R.  Co.,  54  Verm.,  464.  _  This  claim 
however,  on  the  facts  found,  is  wholly  vvithout  foundation. 

The  plaintiff  is  entitled  to  a  judgment  in  his  favor  for  one  thou- 
sand dollars,  and  the  Superior  Court  is  so  advised. 

In  this  opinion  the  other  judges  concurred.^ 


*  But  see  Thane  v.  Traction  Co.  and  Crampton  v.  Ivie  Bros.,  infra,  note  2. 

''Accord:  Wagner  w.  Mo.  Pac.  R.  Co.,  97  Mo.  512  (1888)  ;  Woolcry  v. 
Louisville  N.  A.  &  C.  K.  Co.,  107  Ind.  381  (1886)  ;  New  York,  L.  E.  &  IV.  R. 
Co.  v.  Ball,  53  N.  J.  L.  283  (1891)  ;  Webster  v.  Rome  W.  &  O.  R.  Co.,  115  N. 
Y.  112  (1889),  passengers  riding  in  baggage  car,  which  rules  of  the  company 
forbade  them  to  occupy,  held  entitled  to  recover  for  injuries  received  m  a 
collision  but  not  for  those  received  by  reason  of  the  dangers  pecuHar  to  their 
nature  and  the  use  of  tlie  baggage  car.  See  also,  the  cases  cited  and  at- 
tempted to  be  distinguished  by  Paxson,  J.  in  Pa.  R.  Co.  v.  Langdon,  92  Pa. 
21  (1879),  contra,  where  a  curious  distinction  is  drawn  between  the  effect  of 
the  conductor's  permission  to  the  passenger  to  violate  rules  intended  for  the 
convenience  of  the  carrier  and  a  similar  permission  to  violate  rules  intended 
to  preserve  the  safety  of  passengers. 

'  In  Thirteenth  &  Fifteenth  St.  Passenger  R.  v.  Boudron,  92  Pa.  475 
(1880)  Dcivire  v.  Boston  &  M.  R.  Co.,  148  Mass.  343  (1889)  and  Burns  v. 
Belief ontaine  R.  Co.,  50  Mo.  139  (1872),  the  passenger  was  allowed  to  recover 
for  the  injury  received  in  a  rear  end  collision  although  he  was  at  the  time 
riding  on  the  rear  platform  of  a  horse  car;  in  Watson  v.  Portland  &  Cape 
Elisabeth  R.  Co., 91  Maine  584  (1898),  it  was  held  that  a  passenger  on  the  front 
platform  of  an  electric  street  car.  whose  fare  is  accepted  by  the  conductor 
knowing  his  exposed  position,  while  taking  upon  himself  the  duty  of  looking 
out  for  the  usual  obvious  cares  of  his  position  such  as  the  jolts  and  swerves 
inevitable  in  rapid  transit,  was  not  guilty  of  negligence  barring  him  from 
recovery  for  injuries  received  by  being  thrown  from  the  platform  by  the 


1450  SHARKER  V.   PAXSON. 

SHARRER  V.  PAXSOX  et  al. 

Supreme  Court  of  Pennsylvania,  1895.     171  Pa.  26. 

Mr.  Justice  McCollum.  The  jury  found  that  the  plaintiff's 
husband  was  standing  upon  the  step  of  the  car  with  a  firm  hold  on 
each  side  rail,  and  that  while  in  this  position  the  company's  servant 
broke  his  hold  on  the  rails  and  pushed  from  the  step,  and  that  in 
consequence  of  this  action  of  the  servant  he  received  the  injury 
which  resulted  in  his  death.  The  evidence  was  sufficient  to  war- 
rant the  finding,  and  the  instructions  in  regard  to  it  were  clear  and 
impartial.  It  is  contended  however  that,  inasmuch  as  the  deceased 
reached  the  position  from  which  he  was  pushed  while  the  train  was 
moving,  his  own  negligence  contribvi.ted  to  his  death  and  is  a  bar 
to  this  action.  The  attempt  to  board  a  moving  train  is  undoubt- 
edly a  negligent  and  hazardous  act,  but  if  it  is  successful  and  the 
negligent  party  gets  safely  upon  the  car  it  will  not  justify  or  ex- 
cuse the  subsequent  negligence  of  the  company  or  its  servants,  by 
which  he  is  injured.  The  rights  of  Sharrer  in  the  position  from 
which  he  w^as  thrown  were  the  same  as  if  he  had  taken  it  before 
the  train  started,  or  as  the  rights  of  a  passenger  who  while  the 
train  is  moving  leaves  his  seat  in  the  body  of  the  car  and  stands 
on  the  platform  of  it.  He  was  on  the  car  when  the  negligence  of 
the  company  intervened  and  hurled  him  from  it.  His  presence  there 
was  not  the  proximate  cause  of  his  death.  The  peril  involved  in 
getting  there  was  passed,  and  the  negligence  or  misconduct  of  which 
he  w^as  the  victim  w^as  not  included  in  the  risks  to  which  his  po- 
sition exposed  him  :  Passenger  Raihvay  v.  Boudrou,  92  Pa.  475.  If 
he  had  been  thrown  from  the  car  by  an  ordinary  jolt  of  it,  as  was 

jarring  and  jolting  caused  by  the  motorman  improperly  running  into  an  open 
switch;  and  see  Cattano  v.  Metropolitan  St.  R.  Co.,  173  N.  Y.  565  (1903). 

In  Massachusetts  it  is  held  that  where  a  passenger  rides  on  a  platform 
the  use  of  which  is  prohibited,  or  upon  which  the  passengers  are  allowed  to 
ride  at  their  own  risk,  he  may  not  recover  for  any  injury  received  by  the 
negligent  operation  of  the  car  while  he  is  riding  thereon  or  while  he  is  at- 
tempting to  alight  therefrom,  Burns  v.  Boston  Elevated  R.  Co.,  183  Mass.  96 
(1903). 

As  to  the  right  of  a  passenger  to  recover  if  struck  by  an  object  near  the 
track  while  he  is  riding  upon  the  running  board  or  step  of  an  electric  car, 
compare  Bumbear  v.  United  Trac.  Co.,  198  Pa.  St.  198  (1901)  with  Ramsey  v. 
Pottstoum  &  Reading  St.  R.  Co.,  35  Sup.  Ct.  598  (Pa.  1908)  and  Wood  v. 
Chester  Trac.  Co.,  36  Sup.  Ct.  483  (Pa.  1908)  ;  and  see  Denver  etc.  Co.  v. 
Dwyer,  20  Colo.  132  (1894).  See,  also,  Crampton  v.  Ivie  Bros.,  126  N.  Car. 
894  "(1900),  intimating  that  the  plaintift,  who  so  sat  in  a  buggy  that  a  mere 
jolt  might  throw  him  off,  could  not  recover,  if  thrown  therefrom  by  a  col- 
lision with  the  defendant's  negligently  driven  vehicle. 

On  the  other  hand  it  was  held  in  Thane  v.  Scranton  Trac.  Co.,  8  Sup.  Ct. 
446  (1898),  191  Pa.  St.  249  (1899),  that  a  passenger  unnecessarily  standing  on 
a  rear  platform  could  not  recover  for  injuries  received  in  a  rear  end  collision ; 
while  in  Nieboer  v.  Detroit  Elcc.  R.  Co.,  128  Mich.  486  (1901).  it  was  held 
that  a  boy  riding  on  the  rear  buffer  of  a  street  railway  car  could  not  recover 
for  an  injury  received  in  a  slight  collision  with  the  car  following  it.  In  each 
case,  hovvever,  there  was  a  vigorous  dissenting  opinion  ;  in  the  first  by  Peter 
P.  Smith,  J.,  8  Pa.  Sup.  Ct.  451,  especially  454,  and  in  the  second  case  bj 
Judge  Moore,  with  whom  concurred  Montgomery,  C.  J. 


BOULFROIS  T.   UNITED  TRACTIOX   CO.  145^ 

the  plaintiff  in  Railroad  Co.  v.  Hoosey,  99  Pa.  492,  he  might  have 
been  considered  as  having  vokmtarily  exposed  himself  to  or  assumed 
a  risk  incident  to  his  position  and  thereby  cause  or  contributed  to 
the  injury  he  received.  But  he  had  no  reason  to  anticipate  the  act 
^vhich  caused  his  death,  and  to  push  him  from  the  step  under  the 
circumstances  established  by  the  verdict  was  as  great  an  outrage 
as  to  p'.oh  from  the  platform  while  the  train  is  moving  any  passen- 
ger who  may  be  found  standing  upon  it.  The  negligence  of  the 
deceased  in  attempting  to  get  on  the  moving  car  can  not  relieve  the 
company  from  responsibility  for  t,he  consequences  of  the  negligent 
act  committed  by  its  employee  after  the  former  accomplished  his 
purpose.  He  was  lawfully  upon  the  steps  of  the  car  and  entitled 
to  the  rights  of  a  passenger  in  it.  This  sufficiently  appeared  by  the 
ticket  in  his  possession.  The  risk  he  ran  in  getting  there  was  no 
abridgment  of  his  right  to  pass  from  the  step  to  the  platform  and 
thence  to  a  seat  in  the  car. 

Judgment  affirmed. 


BOULFROIS  V.  UNITED  TRACTION  COMPANY. 

Supreme  Court  of  Pennsylvania,  1904.    210  Pa.  263. 

Mr.  Justice  Dean.  We  desire  it  to  be  distinctly  understood 
that  in  Potvclson  v.  United  Traction  Co.,  204  Pa.  474;  Hnn- 
terson  v.  Traction  Co.,  205  Pa.  568  and  Bainbridge  v.  Trac- 
tion Co.,  206  Pa.  71,  we  had  no  intention  of  relaxing  the  well- 
established  rule,  "That  to  get  on  or  off  a-  moving  car,  whether  pro- 
pelled by  steam  or  electricity,  is  negligence  per  se  in  him  who  at- 
tempts it."^  From  the  whole  evidence  in  this  case,  it  did  not 
necessarily  and  certainly  follow  that  Armand  Boulfrois,  Jr.,  the  in- 
jured person,  was  either  negligent  or  not  negligent.  If  the  car  had 
not  stopped  when  he  attempted  to  get  on,  and  by  that  attempt  he 
was  injured,  he  was  negligent  and  can  not  recover;  if  it  either  had, 
or  had  not  stopped  and  he  was  safely  on,  then  if  the  conductor, 
by  suddenly  and  recklessly  turning  on  the  power  gave  the  car  a  jerk 
which  threw  the  boy  off,  it  was  the  conductor's  negligence  that 
caused  the  injury  and  he  can  recover.  If  the  boy's  attempt  to  get 
on  was  not  complete,  if  he  was  still  engaged  in  the  attempt,  when 
the  car  was  jerked,  the  inceptional  act  of  negligence  when  he  stepped 
from  the  ground  onto  a  moving  car,  still  continued  and  he  can  not 
fecover.2  jf  j^g  ^^g  negligent  in  getting  on,  as  from  his  own  tes- 
timony he  was,  then  when  safely  on  before  he  had  time  to  get  seated. 

^A  judgment  on  a  verdict  for  the  plaintiff  was  reversed  because  the  trial 
judge  had  instructed  the  jury  that  the  attempt  to  boar.-  the  moving  car  was 
not  negligent,  "if  the  motion  of  the  car  was  such  as  to  induce  the  plaintiff  to 
believe  that  it  was  about  to  stop  or  was  such,  that  he  or  any  reasonable  person 
would  be  induced  to  believe  that  he  could  get  on  with  safety." 

''Accord:  Bradney  v.  Phila.  Rapid  Transit  Co.,  232  Pa.  St.  127  (1911). 
Compare  Washington  'etc.  R.  v.  Harmon  and  People  Pass.  R.  Co.  v.  Green  R. 
R.  v.  Armstrong  and  Cawfield  v.  Asheville  R.  Co.,  cited  ni  Note  1  to  Teakle  v. 
San  Pedro  etc.  R.  R.,  ante,  p.  1388. 


14^2  BERRY  V.   SUGAR   NOTCH   BOROUGH. 

the  conductor  by  suddenly  turning  on  the  power  threw  him  off,  it 
was  the  conductor's  negHgence  which  caused  the  injury  and  defend- 
ant is  answerable. 

Was  the  act  of  getting  on  complete,  when  the  jerk  threw  him 
off?  If  it  was  complete  then  the  company's  negligence  caused  the 
accident,  just  as  clearly  as  if  some  other  passenger,  on  his  feet  look- 
ing for  a  seat,  was  thrown  violently  to  the  floor  or  thrown  off  by 
a  sudden  jerk  of  the  car  by  a  reckless  conductor.  The  boy's  good 
luck  in  reaching  the  running  board  in  safety  did  not  condone  the 
negligent  act  of  getting  on,  if  he  was  not  yet  safely  on  when  thrown 
off.  We  have  tried  to  make  our  meaning  plain:  if  we  have  failed 
it  is  either  because  our  obtuseness  of  perception  or  poverty  of  lan- 
guage fails  to  make  plain  to  others  Avhat  is  plain  to  us. 


BERRY  V.  SUGAR  NOTCH  BOROUGH. 
Supreme  Court  of  Pennsylvania,  1899.     191  Pa.  345. 

Mr.  Justice  Fell.  The  plaintiff  was  a  motorman  in  the  em- 
ploy of  the  Wilkes-Barre  and  Wyoming  Valley  Traction  Company 
on  its  line  running  from  Wilkes-Barre  to  the  borough  of  Sugar 
Notch.  The  ordinance  by  virtue  of  which  the  company  was  per- 
mitted to  lay  its  track  and  operate  its  cars  in  the  borough  of  Sugar 
Notch  contained  a  provision  that  the  speed  of  the  cars  while  on  the 
streets  of  the  borough  should  not  exceed  eight  miles  an  hour.  On 
the  line  of  the  road,  and  wathin  the  borough  limits,  there  was  a 
large  chestnut  tree,  as  to  the  condition  of  which  there  was  some 
dispute  at  the  trial.  The  question  of  the  negligence  of  the  borough 
in  permitting  it  to  remain  must,  however,  be  considered  as  set  at 
rest  by  the  verdict.  On  the  day  of  the  accident  the  plaintiff  was 
running  his  car  on  the  borough  street  in  a  violent  wind-storm,  and 
as  he  passed  under  the  tree  it  was  blown  down,  crushing  the  roof 
of  the  car  and  causing  the  plaintiff's  injury.  There  was  some  con- 
flict of  testimony  as  to  the  speed  at  which  the  car  was  running,  but 
it  seems  to  be  fairly  well  established  that  it  was  considerably  in  ex- 
cess of  the  rate  permitted  by  the  borough  ordinance. 

We  do  not  think  that  the  fact  that  the  plaintiff*  was  running 
his  car  at  a  higher  rate  of  speed  than  eight  miles  an  hour  affects 
his  right  to  recover.  It  may  be  that  in  doing  so  he  violated  the 
ordinance  by  virtue  of  which  the  company  was  permitted  to  operate 
its  cars  in  the  streets  of  the  borough,  but  he  certainly  was  not  for 
that  reason  without  rights  upon  the  streets.  Nor  can  it  be  said  that 
the  speed  was  the  cause  of  the  accident,  or  contributed  to  it.  It 
might  have  been  otherwise  if  the  tree  had  fallen  before  the  car 
reached  it;  for  in  that  case  a  high  rate  of  speed  might  have  ren- 
dered it  impossible  for  the  plaintiff  to  avoid  a  collision  which  he 
either  foresaw  or  should  have  foreseen.  Even  in  that  case  the 
ground  for  denying  him  the  right  to  recover  would  be  that  he  had 
been  guilty  of  contributory  negligence,  and  not  that  he  had  violated 


BERRY  V.  SUGAR  NOTCH  BOROUGH.  1453 

a  borough  ordinance.  The  testimony  however  shows  that  the  tree 
fell  upon  the  car  as  it  passed  beneath.  With  this  phase  of  the 
case  in  view,  it  was  urged  on  behalf  of  the  appellant  that  the  speed 
was  the  immediate  cause  of  the  plaintiff's  injury,  inasmuch  as  it 
was  the  particular  speed  at  which  he  was  running  which  brought 
the  car  to  the  place  of  the  accident  at  the  moment  when  the  tree 
blew  down.  This  argument,  while  we  can  not  deny  its  ingenuity, 
strikes  us,  to  say  the  least,  as  being  somewhat  sophistical.  That 
his  speed  brought  him  to  the  place  of  the  accident  at  the  moment 
of  the  accident  was  the  merest  chance,  and  a  thing  which  no  fore- 
sight could  have  predicted.  The  same  thing  might  as  readily  have 
happened  to  a  car  running  slowly,  or  it  might  have  been  that  a 
high  speed  alone  would  have  carried  him  beyond  the  tree  to  a  place 
of  safety.  It  was  also  argued  by  the  appellant's  counsel  that,  even 
if  the  speed  was  not  the  sole  efficient  cause  of  the  accident,  it  at 
least  contributed  to  its  severity,  and  materially  increased  the  dam- 
age. It  may  be  that  it  did.  But  what  basis  could  a  jury  have  for 
finding  such  to  be  the  case ;  and,  should  they  so  find,  what  guide 
could  be  given  them  for  differentiating  between  the  injury  done  this 
man  and  the  injury  which  would  have  been  done  a  man  in  a  similar 
accident  on  a  car  running  at  a  speed  of  eight  miles  an  hour  or  less  ? 
The  judgment  is  affirmed. 


INDEX 

[References  are  to  Pages.l 


ABATEMENT  OF  NUISANCES, 

See  Self-Help. 

ABUSE  OF  ECONOMIC  POWER— USE  OF  ONE'S  ECONOMIC 
POWER  OVER  ANOTHER  TO  CAUSE  SUCH  OTHER  TO  ACT  TO 
THE  DETRIMENT  OF  THE  PLAINTIFF, 

causing  the  plaintiff's  discharge   from  employment,   1226,   1249,   1252n. 

causing  loss  of  trade,  1253. 

refusal  to  deal  with  or  employ  persons  dealing  with  plaintiffs,  see 

Competition  Between  Trade  Rivals. 
workmen  combining  to  procure  the  discharge  of  fellow  workmen, 

see  Strikes. 

ABUSE  OF  PRbCESS,  1036. 

ACTS  OF  STATE, 

See  Governmental  Officers. 

ACTION  ON  THE  CASE  FOR  STATEMENT  MADE  TO  PLAINTIFF 
OR  CONCERNING  HIM  OR  HIS  PROPERTY,  TRADE,  BUSINESS 
OR  PROFESSION, 

See  Fraud  and  Deceit;  Defamation;  Disparagement  of  Property  (Slan- 
der OF  Title  and  Trade  Libel.) 

untrue  statements,  not  in  themselves  defamatory,  published  for  the  pur- 
pose of  injuring  their  subject,  888. 

ADMINISTRATION  OF  JUSTICE-CONDUCT  EXCUSED  WHEN 
NECESSARY  TO  SECURE, 

immunity  of  the  judiciary,  see  Judiciary. 
immunity  of  witnesses,  see  Witnesses. 
arrest  with  or  without  warrant,  see  Arrest. 

seizure  of  property  under  judicial  process,  see  Seizure  of  Property. 
right  to  institute  legal  proceedings  for  seizure  of  property  under  judi- 
cial process,  see  Malicious  Prosecution  and  Abuse  of  Process. 

AFFIRMATIVE  OBLIGATIONS, 

duty  to  take  step  to  rescue  others  from  perils  not  created  by  oneself,  299. 
perils  created  by  one's  own  legally  innocent  conduct,  302. 

1455 


1456  INDEX 

[References  are  to  Pages.] 

duties  attached  to  tenure  of  land,  306. 
duties  attached  to  holding  of  office,  307. 

duties  attached  to  exercise  of  trades  and  professions  to  continue  gratu- 
itous services  or  protection,  308,  316,  321,  323. 
duties  attached  to  continue  relations  voluntarily  entered  into, 
bailees,  308. 

master  and  servant,  see  Appendix. 
duties  attached  to  ownership,  occupation  and  use  of  real  and  personal 
property  towards  persons  and  property  outside  the  boundaries  of  the 
defendant's  premises,  363,  374. 

duty  of  abutting  owner  to  repair  sidewalks,  368,  373. 

duty  towards  persons  coming  on  the  land  without  right  other  than 

that  derived  from  occupier's  consent,  377. 
trespassers  injured  by  bad  conduct  of  premises,  379. 

by  acts  intentionally  or  probably  harmful  to  a  trespasser 
whose  presence  is  known  or  expected,  381,  386,  388,  389, 
391. 
plaintiflF  a  trespasser  on  land  occupied  by  some  one  other  than 

the  defendant,  393. 
infants   trespassing  on   property   left  exposed   in   or  near  high- 
ways, 395,  397,  400. 
infants  trespassing  upon  defendant's  real  estate,  403. 
toward  bare  licensees  permitted  to  come  for  their  own  purposes 
and  benefit  on  to  the  defendant's  property,  414. 
bad  physical  condition  of  premises, 
toward  persons  coming  for  their  own  purposes  at  occupier's  in- 
vitation express  or  implied,  422,  427,  429,  430. 
toward  persons  coming  on  the  premises  for  purposes  in  which 
the  occupier  has  an  interest,  437,  443,  444. 
social  guests,  434. 
business  guests,  437. 
vendors  of  real  estate,  451. 
lessors  of  real  estate,  456. 

persons  supplying  chattels  for  the  use  of  others, 
gratuitously,  469. 

for  use  for  the  purposes  of  the  supplier's  business.  472. 
by  lease  and  for  hire,  489. 
by  sale,  494. 
manufacturers  of  chattels, 

liability  to  persons  not  in  privity  of  contract  with  them, 
498. 

.\GENTS,  SERVANTS  AND  BROKERS, 

purchase  and  sale  as  agents,  servants  and  brokers  whether  conversion, 

see  Conversion. 
refusal  to  deliver  to  the  owner  goods  entrusted  to  them  by  their  prm- 

cipals  or  masters,  see  Conversion. 


INDEX  1457 

[Rcfcrciucs  arc  to  Pages.\ 


ARREST, 

in  false  imprisonment,  28. 
^  without  warrant,  974. 

by  private  persons,  974. 
b}'  peace  officers,  977,  980. 
under  void  or  voidable  warrant,  987,  993. 
under  warrant  irregularly  served,  lOOOn. 

ASSAULT, 

See  Trespass  Vi  et  Armis. 


BAILEES, 

duties  of  bailees  of  goods,  308. 

duties  of  one  taking  charge  of  a  helpless  human  being,  304no 

misfeasance  by  bailee,  see  Conversion. 


BATTERY, 
'•BOYCOTT,' 


See  Trespass  Vi  et  Armis. 


See  Strikes  and  Competition. 


CAUSATION, 

what  causal  relation  must  exist  between  the  plaintiff's  wrong  and  his 
injury  to  bar  his  right  to  recover  thePefor,  see  Contributory  Fault. 
the  probability  that  an  act  or  omission  will  have  injurious  consequences 
as  a  test  of  its  wrongful  character,  see  Negligence.  Acts  wrongful 
because  as  done  they  threaten  probable  harm  to  others, 
for  what  consequences  of  his  act  or  omission  is  a  wrongdoer  legally  re- 
sponsible, 225. 

concurrent  causes,  225. 
direct  consequences,  229. 

natural  though  indirect  consequences,  233,  250. 
intervening  agents — natural  forces, 
winds,  239,  251.  255.  258. 
rains  and  floods,  244,  261,  262,  263. 
acts  of  animals, 

put  out  of  control  by  defendant's  WTong,  274. 
frightened  by  defendant's  wrong,  275n. 
acts  of  human  beings, 

innocent  acts  done  to  protect  themselves  or  others 

from  defendant's  wrong,  248. 
instinctive  acts  done  to  protect  themselves  or  others 

from  defendant's  wrong,  266.  271. 
wrongful  acts  done  to  protect  themselves  or  others 

from  defendant's  wrong,  286,  288n. 
acts    done    during    insanity    caused    by    defendant's 
wrong,  276. 


1458  INDEX 

[References  are  to  Pages.] 

physical  injury  resulting  from  fright  or  nervous 
shock,  279,  281. 

negligent  intermeddling  by  children  and  adults,  286. 

deliberate  intermeddling  by  children,  290. 

intentionally  injurious  use  deliberately  made  of  op- 
portunity created  by  defendant's  wrong,  292. 

third  party's  neglect  of  duties  owed  by  him  to  pro- 
tect plaintiff  from  the  effects  of  the  defendant's 
wrong,  296. 

COMPETITION  BETWEEN  TRADE  RIVALS, 

advancement  of  one's  economic  interests  as  a  justification  for  harm  to 
similar  interest  of  others, 

disparagement  of  the  goods  of  a  competitor, 

inducing  a  person  to  break  his  contract  with  a  competitor  and 
enter  into  a  similar  contract  with  oneself,  1168,  1174. 

offering  preferential  advantages  to  those  who  deal  exclusively 
with  oneself,  1241,  1249n. 

refusal  to  deal  with  those  who  do  not  deal  exclusively  with  one- 
self, 1261n. 

associations  prohibiting  their  members  under  pain  of  fines  and 
fear  of  expulsion  from  dealing  with  those  who  do  not  deal  ex- 
clusively with  the  members,  1257,  1261,  1269,  1275. 

refusal  to  deal,  and  association  prohibiting  dealings,  with  per- 
sons whose  conduct  is  antagonistic  to  the  trade  policy  of  one- 
self or  of  the  association,  1249n,  1265. 
selling  at  unprofitable  prices, 

to  drive  a  competitor  out  of  the  field,  1280. 

to  drive  one  not  a  competitor  out  of  business  because  of  a  desire 
to  injure  him,  1280. 
refusal  to  deal  with  a  person  through  mere  desire  to  injure  him,  1278. 

CONTRIBUTORY  FAULT, 

deliberate  choice  to  encounter  a  known  peril  wrongfully  created  by  an- 
other, 

"voluntary  assumption  of  risk," 

use  of  highways  known  to  be  in  bad  repair,  337,  1346. 
entering  or  leaving  one's  premises  by  entrance  or  exit  made  dan- 
gerous by  defendant's  fault,  1346. 
using  premises  or  vehicles  of  a  common  carrier  in  face  of  known 

danger,  1349. 
running  risk  to  save  life,  348,  1350. 
running  risk  to  save  property.  348,  1350. 
"coming  to  a  nuisance,"  333,  1351,  1352. 
contributory  negligence,  1359. 

admiralty  rules  of  divided  damages,  1371. 

where  defendant's  liability  is  not  based  on  negligence  or  other 
fault  as  where  he  keeps  a  vicious  animal,  1363. 


INDEX  1459 

[References  are  to  Pages.] 

where  defendant's  conduct  is   intentionally  injurious,   1364. 
where  defendant's  conduct  is  wanton,  wilful  or  reckless,  1366. 
where  defendant  is  guilty  of  a  breach  of  statutory  duty,  1373. 

where  the  statutory  duty  is  imposed  for  the  protection  of 
a  class  regarded  as  incapable  of  efficient  self-protection, 
1375. 
breach   of    statute   as    tantamount    to    wilful    and    wanton 
misconduct,  1376. 
effect  of  defendant's  ability  to  avoid  injury  to  which  th^  plain- 
tiff by  his  own  misconduct  has  exposed  himself — ("Last  Clear 
Chance"  doctrine),  1378. 
where  defendant  knew  of  plaintiff's  peril,  1385,  1408. 
where  defendant  owed  plaintiff  a  duty  to  discover  his  peril,  1387, 

1393,  1397. 
where  plaintiff  has  opportunity  to  avoid  injury  equal  to  that  of 

defendant,  1392,  1397,  1403,  1410. 
where  both  plaintiff  and  defendant  by  reason  of  their  previous 

misconduct  are  unable  to  avoid  the  injury,  1394. 
contributory  negligence  of  persons  associated  with  or  related  to 
the  plaintiff,  1412. 

common  carrier  of  passengers,  1412,  1413n. 

persons   conveying  the   plaintiff   for   hire  or   gratuitously, 

1413,  1416. 
common  carrier  of  goods,  1420. 
parent  and  child,  1424. 
htfsband  and  wife,  1429. 
plaintiff's  breach  of  statutory  duty,  1433. 

driving  or  riding  in  unlicensed  automobile,  1436. 

violation  of  Sunday  laws,  1442. 
causal  relation  between  plaintiff's  fault  and  his  injury,  1445-1453. 

CONVERSION,  96. 

nature  of  plaintiff's  right,  97. 
character  of  defendant's  act,  101. 

intent  to  acquire  property  or  possession  or  assert  a  right  thereto, 
101. 

knowledge  that  the  chattel  is  the  subject  of  property,  107. 

intent  to  deal  with  the  chattel,  108. 
nonfeasance,  109. 
misfeasance,  112. 

sale  and  delivery  of  possession,  112. 

purchase  and  taking  possession  thereunder,  132. 

purchase  or  sale  without  transfer  of  possession,  112. 

purchasing  or  selling  as  servant,  agent  or  broker,  115. 

wrongful  taking  and  asportation.  135. 

destruction  of  and  injury  to  chattels,  153. 

misfeasance  by  bailees,  servants  and  agents,  155. 

unauthorized  sales  by  bailees,  servants  and  agents,  155. 


1460  INDEX 

[References  are  to  Pages.] 

misdelivery  by  carrier  of  goods,  156,  158. 

use  by  bailee  in  excess  of  the  terms  of  the  bailment,  160, 
164. 
demand  and  refusal,  160. 
effect  of  offer  to  return  the  chattels  converted,  175. 

CULPABILITY, 

fault,  moral  or  social,  whether  essential  to  legal  liability, 

in  assault  and  battery,   false  imprisonment  and  trespass  to  real 

and  personal  property,  see  Trespass  Vi  et  Armis. 
for  harm  done  by  animals,  see  Ow^ners  and  Custodians  of  Ani- 
mals. 
for  harm  done  by  escape  and  spread  of  fire,  see  Spread  of  Fire. 
for  harm  done  by  escape  of  foreign  substances  kept  on  land,  see 

Foreign  Substances  Collected  and  Kept  on  Land. 
for  harm  by  inherently  dangerous  work,  see  Inherently  Dan- 
gerous Work. 
for   harm    done   by   independent   contractors,    see    Independent 
Contractors. 

D 
DEFAMATION.  786. 

slander,  789. 

words  imputing  the  commission  of  certain  crimes,  790. 

words  imputing  certain  diseases,  802. 

words  injurious  to  the  plaintiff's  trade,  business,  professional  or 

official  reputation,  803. 
defamatory  words  causing  actual  harm  other  than   impairment 

of  reputation,  820. 
libel,  826. 

publication,  833. 

repetition  and  dissemination  of  defamatory  statements  of  others, 

839. 
publication  of  defamatory  truths,  846. 
defendant's  intent  to  injure  the  plaintiff's  reputation,  850. 

DISCIPLINE, 

use  of  force  to  preserve  discipline, 

parents  and  persons  in  loco  parentis,  947. 
masters  of  vessels,  952. 

DISSEISIN,  94. 


ECONOMIC    ADVANCEMENT   AS   A   JUSTIFICATION    FOR   ACTS 
NFXESSARY  TO  SECURE  SUCH  ADVANCEMENT  BUT  NECES- 
SARILY OR  INTENTIONALLY  HARMFUL  TO  OTHERS, 
nature  of  the  acts  done, 

interference  with  business  or  employment, 

by  inducing  third  persons  to  break  their  contracts,  1167. 


INDEX  I461 

[References  are  to  Pages.] 

by  force,  threats  or  other  means  tortious  in  themselves, 
1177. 

by  interference  with  the  freedom  of  opportunity  to  con- 
tract or   to   obtain   labor   or   employment    (the   right   to 
"the  freedom  of  the  market"),  1179. 
the  actor's  economic  advantage  as  a  justification, 

conflicting  interests  of  employer  and  employed,  see 
Strikes. 

competition  between  trade  rivals,  see  Competition  Be- 
tween Trade  Rivals. 

abuse  of  economic  superiority  over  third  persons,  see 
Abuse  of  Economic  Superiority  Over  Third  Persons. 

regulation  of  the  exercise  of  mutually  conflicting  rights, 
see  Highways;  Use  of  Real  Estate;  Subterranean 
Water. 

ECONOMIC  POWER, 

See  Abuse  of. 

F 

FALSE  IMPRISONMENT, 

See  Trespass  Vi  et  Armis. 

FOREIGN  SUBSTANCES  COLLECTED  OR  KEPT  ON  LAND,  559. 

liability  for  escape  of  water  in  reservoirs  or  tanks,  559,  582,  587,  589, 

591. 
electricity,  595. 
steam  in  boilers,  599. 
explosives,  605. 
structures  upon  land,  607. 

FRAUD  AND  DECEIT,  657. 

falsity  of  statement,  668. 

defendant's  intent,  671. 

intent  to  cause  loss  to  plaintifi"  or  to  gain  at  his  expense,  671. 

promises  and  statements  of  intention,  676. 

false  statement  of  plaintiff's  intention,  689. 

defendant's  belief  or  want  of  belief  in  the  truth  of  the  fact  asserted, 

691. 
plaintiff's  right  to  rely  on  tlic  defendant's  statements,  721. 

statements  made  to  persons  other  than  the  plaintiff,  721. 

statements  of  law,  737. 

statements  of  opinion,  739. 

statements  of  value  and  price  paid,  741. 

statements  of  quality  open  to  observation  01    investigation,  760. 
plaintiff's  reliance  on  the  defendant's  statements,  772. 
plaintiff's  damage,  778. 


1462  INDEX 

[References  are  to  Pages.l 
FRIGHT  AND  NERVOUS  SHOCK, 

as  legal  injury,  214,  218-221. 

pliysical  injury  resulting  from,  279-281. 


GOVERNMENTAL  OFFICERS, 

immunity  of  governmental  officers  for  harm  done  to  citizens  of  other 

countries  "Acts  of  state,"  955. 
immunity  of  such  officers  for  defamation,  see  Absolute  Privilege. 

H 

HIGHWAYS, 

use  of  highways,  obstruction  by  traffic,  1183. 
obstruction  by  abutting  owners,   1189. 


INDEPENDENT  CONTRACTORS  — LIABILITY  OF  EMPLOYERS 
FOR  THE  NEGLIGENT  ACTS  AND  OMISSIONS  OF  INDEPEND- 
ENT CONTRACTORS. 

contractor's  neglect  to  take  precautions  obligatory  on  the  employer, 
making  or  repairing  highways,  614,  618. 

negHgence  in  supplying  equipment  for  common  carriers,  620. 
negligence   in   carrying  operations   under    franchise   granted    to 

their  emploj^ers,  625. 
contractors  operating  railways,  625,  629. 
negligence   in   repairing  and   maintaining  exteriors   of   building, 

608,  630. 
negligence  in  maintaining  safe  conditions  in  public  resorts,  633. 
negligence  in  doing  work  dangerous  unless  precautions  are  taken,  607, 
609,  653. 

negligence  in  tearing  down  buildings,  641,  646. 

INHERENTLY  DANGEROUS  WORK,  609. 
blasting,  609. 

INTENTIONAL  INTERFERENCE  WITH  PERSONAL  AND  PROP- 
ERTY RIGHTS, 

actions  of  trespass,  see  Trespass  Vi  et  Armis. 
actions  of  trespass  on  the  case,  177. 

interference  with  electoral  franchise,  177. 
interference  with  consortium  of  husband,  179. 
interference  with  privacy,  182. 

interference  with  the  carrying  on  of  businesses,  trades  or  voca- 
tions, see  Competition  Between  Trade  Rivals  and  Strikes, 
1167,  1168. 
interference  with  the  performance  of  contracts,  1174,  1192. 


INDEX  1463 

[Rcfcroiccs  arc  to  I'atjcs.] 

interference  with  the  entering  into  of  contracts  (freedom  of 
market),  1179. 

interference  with  peace  of  mind,  21,  221. 

injury  intentionally  inflicted  on  plaintiff  bj'  acts  primaril}'  di- 
rected toward  third  person  associated  with  plaintiff,   186. 


JUDICIARY, 

immunity  for  judicial  acts,  956-970. 

immunity  for  executive  acts,  970. 

immunity  of  quasi-judicial  officers,  959n. 

immunity  for  defamation,  see  Privileged  Commuxic.vtiox. 


LEGISLATIVE  STATUTES  AND  MUNICIPAL  ORDINANCES, 

doing  of   acts  prohil)ited  or  omission  of  duties  created  by  legislative 
statutes,  353-357,  361. 

municipal  ordinances,  351-359. 
acts  directly  authorized  or  commanded,  1320,  1330,  1338,  1342. 

necessarily  involved  in  the  doing  of  acts  directly  authorized  or 

commanded,  1323,  1329,  1331,  1334. 
plaintiff's  breach  of  statutory  dutj',  see  Contributory  Fault. 

LESSORS, 

liability  of  lessor  of  real  estate, 

for  defects  existing  when  tenant  went  into  possession  thereof, 
external  defects,  457. 
internal  defects,  459,  462,  464. 
for  defects  coming  into  existence  after  tlie  tenant  has  taken  pos- 
session, 458. 
effect  of  covenant  to  repair,  458n,  462n. 
repairs  gratuitously'undertaken  by  landlord,  467. 
for    defects   of   personal   property   dangerously   defective   when 
leased,  488,  490. 

M 

MALICIOUS  PROSECUTION,  999. 

criminal  prosecution,  999. 

civil  actions,  1011,  1017. 

when  the  prosecution  begins,  1003. 

termination  of  the  prosecution,  1003. 

probable  cause,  1020. 

advice  of  counsel,  1028. 
malice,  1031. 
guilt  of  person  prosecuted,  1035. 


1464  INDEX 

[References  arc  to  Pages.] 

manufacturers  of  chattels  —  liability  to  persons 
othp:r  than  their  immediate  vendees, 

See  Affirmative  Obligations. 

MORAL  OBLIGATION  AS  BASIS  OF  LEGAL  DUTIES, 
See  Afhrmative  Obligations. 

N 

NEGLIGENCE, 

acts  wrongful  because  as  done  they  threaten  probable  injury  to  others, 
188,  189. 

negligent  giving  of  misinformation,  see  also  Fraud  and  Deceit, 

190. 
acts  primarily  directed  toward  one  known  to  be  associated  witli 

plaintiff,  192. 
harm  done  to  one  other  than  him  to  whom  the  act  threatened  in- 
jury, 193. 
foresight  of  reasonable  man  the  test,  not  foresight  of  actor,  194, 

196,  197. 
acts  threatening  harm  only  if  others  are  also  guilty  of  miscon- 
duct, 200,  213. 
acts  threatening  probable  fright,  nervous  shock,  mental  pain  or  distress, 
214,  218,  221. 

O 

OWNERS  AND  CUSTODIANS  OF  ANIMALS, 

liability  for  their  trespasses  upon  real  estate,  524. 

cattle,  horses,  etc.,  524. 

dogs,  528. 
liability  for  other  damages  done  by  them, 

animals  ferae  naturae,  537,  543,  545. 

animals  mansuetae  natural  domesticated   animals,  533,   540,  549, 
553. 

OWNERS  AND  OCCUPIERS  OF  REAL  ESTATE, 

duty  of  abutting  owners  to  repair  sidewalks,  368.         -^ 
liability  to  trespassers,  licensees,  social  and  business  guests,  see  Af- 
firmatut;  Obligations. 


PICKETTING, 

See  Strikes  .^nd  Competition. 

PRIVILEGED  COMMUNICATIONS, 

defamation  permitted  when  freedom  of  speech  is  of  such  social  benefit 
as  to  outweigh  the  incidental  danger  of  injury  to  reputations. 


I 


INDEX  1465 

.  [References  are  to  Pages.] 

absolute  privilege — (absolute  immunity), 

defamatory  statements  by  judges,  1037,  1039. 
defamatory  statements  by  counsel,  1042. 
defamatory  statements  by  witnesses,  1046. 
defamatory  statements  by  legislators,  1049. 
defamatory  statements  by  governmental  oflficers,  1053. 
qualified  privilege — (defeasible  immunity),  1055. 

statements  made  for  the  protection  of  the  maker's  property,  busi- 
ness interests  or  reputation,  1055. 

in  action  for  defamation,  1055,  1058,  1061. 
in  action  for  slander  of  title,  1059,  1061. 
for  the  protection  of  some  interest  common  to  the  maker 
and  recipient,  1065. 

statements    as   to   the   character   of    person    holding 

public  office,  1067. 
statement  as  to  character  of   candidates   for  public 
office,  1070. 
statements  made  to  protect  others,  1074. 

where  the  maker  is  under  duty  to  protect  the  recipient, 

1074. 
where  he  is  under  no  such  duty,  1075,  1078.  1081. 

(a)  where  the  statement  is  made  in  answer  to  in- 
quiries, 1081,  1083. 

(b)  where  it  is  volunteered,  1085,  1093,  1095,  1096, 
^        1097. 

statements  made  to  aid  in  the  administration  of  justice,  1099. 
reports  of  legislative,  judicial  and  public,  proceedings,  1101. 
legislative  proceedings,  1101. 
public  meetings,  1106. 
corporation  meetings,  1106. 
judicial  proceedings,  1109,  1115. 
fair  comment — right  to  comment  on  matters  of  public  interest, 

on  literary,  artistic  and  dramatic  works  and  performances,  1118. 
on  enterprises  appealing  to  the  public  for  support,  1121. 
on  goods  ofifered  for  sale  to  the  public,  1124. 
on  conduct  of  public  officials,  1125,  1131. 
on  matters  of  public  interest,  1135. 
on  character  of  candidates  for  public  office,  1137. 
abuse  of  conditional  privilege, 

excessive  publication,  1140,  1142. 

dictation  to  stenographer,  1145. 
message  sent  by  telegraph,  1145. 
letter  negligently  misdirected,  1150. 
publication  in  newspapers,  1152. 
"malice,"  1153,  1155. 

publication   of   defamation    for   a  purpose  other  than   that   for 

which  the  privilege  is  given,  1158. 
dominating  desire  to  injure  plaintiff  by  his  loss, 
in  order  to  profit,  1159. 


1466  INDEX 

[References  are  to  Pages.] 

out  of  personal  animosity,  1162n. 
excessive  publication  as  evidence  of,  1142. 
volunteering  defamation  as  evidence  of,  1096. 
statements  known  to  be  false,  1163n. 
statements    believed   to   be   true   but   on    unreasonable   grounds, 

1159,  1165. 
liability    for    true    statements    intended    to    injure    the    subject 
thereof,  1156. 
action  for  disparagement  of  property, 

disparagement  of  title  (slander  of  title),  873. 
disparagement  of  quality  (trade  libel),  879. 


R 


REAL  ESTATE, 


intrusion  upon,  see  Trespass. 

forcible  ejection  of  intruders  upon,  see  Self-Defense. 

use  of  force  to  effect  re-entry  upon  land,  see  Self-Help. 

duties  of  occupier  of,  see  Affirmative  Obligations. 

collection  of  foreign  substances,  see  Foreign  Substances. 

use  or  sale  of  land  to  injure  others, 

erection  and  maintenance  of  structures  injurious  or  annoying  to 

adjacent  owners  and  occupiers  (spite  walls),  1290. 
sales  to  persons  whose  occupancy  will  reduce  the  value  of  ad- 
jacent land,  1305. 

S 
SALE, 

liability  of  creator  of  a  nuisance  after  sale  of  the  land  on  which  it  is 

situate,  451. 
liability  of  vendors  of  real  estate  in  dangerous  disrepair,  454. 
liability  of  vendors  of  chattels  dangerous  for  use,  495. 
liability  of  a  manufacturer  who  has  sold  a  chattel  dangerou^  for  use, 

498. 
sale  or  purchase  without  delivery  of  possession,   whether  conversion, 

see  Conversion.  ^ 

sale  or  purchase  and  possession  given  or  taken  thereunder,  whether 
conversion,  see  Conversion. 

by  agents,  servants  and  brokers,  whether  conversion  in  them,  see 
Conversion. 
seizure  of  goods  under  legal  process,  997. 
process  void  or  voidable,  997n. 
process  irregularly  served,  997n. 

SELF-DEFENSE, 

right  to  use  force  to  defend  one's  person  or  property  from  injury  or 
intrusion, 

defense  of  one's  person,  891. 


INDEX  1467 

[References  are  to  Pages.] 

use  of  excessive  force,  899. 
defense  of  others,  900. 

defense  of  one's  property  from  wrongful  intrusion,  903. 
defense  of  one's  chattels  from  injury  by  animals,  908. 
entrance  upon  or  use  of  another's  propertj^  to  save  one's  life,  916. 

SELF-HELP, 

right  to  re-enter  premises  in  wrongful  possession  of  another,  920. 
right  to   forcibly  retake  property  in   wrongful  possession   of   another, 

927  to  935. 
right  to  enter  another's  premises  to  retake  one's  property  thereon,  935, 

938. 
abatement  of  nuisances, 

private  nuisances,  940. 
public  nuisances,  941. 

SPREAD  OF  FIRE,  556. 

STRIKES— CONCERTED  COLLECTIVE  ABANDONMENT  OF  EM- 
PLOYMENT TO  FORCE  EMPLOYES  TO  COMPLY  WITH  THE 
STRIKERS'  DEMANDS. 

the  right  to  strike  or  threaten  to  strike,  1197. 

as  dependi»g  on  the  object  sought  to  be  accomplished  thereby, 
1197. 

the  discharge  of  other  workmen, 

1.  Because  such  workmen  are  not  members  of  the 
strikers'  organization  or  because  they  refuse  to 
join  it,  1197. 

2.  Because  they  are  doing  work  which  the  striking 
group  desire  to  obtain,  1210. 

3.  Because  they  have  not  performed  their  obliga- 
tions to  the  organization  of  which  the  strikers 
are  members,  1225n. 

4.  Because  the  strikers  object  to  working  with  them 
on  personal  grounds — other  than  their  not  be- 
ing members  of  the  strikers'  organization, 

because  of  race,  religion  or  personal  habits,  1225. 
because  of  their  extreme  insistence  upon  rigid  discipline, 

1224. 
because  of  mere  personal  animosit}^  1225. 
raise  of  wages  or  improved  work  conditions,  1213-1222. 
to  compel  their  employer  to  cease  dealing  with  other  em- 
ployers   whose    workmen    are   on    strike    ("sympathetic 
strikes"),  1228-1237n. 
when   such   employer   is   aiding  the   employer   whose   workmen 
tr.  are   on   a   strike   by   doing   work   for   him   which   his   striking 

I  workmen  refuse  to  do,  1238. 

as  depending  on  the  effect  upon  the  persons  aimed  at — strike,  if 


1468  INDEX 

[References  are  to  Pages.] 

successful,    would   deprive   the    workman    whose   discharge    is 
sought  of  all  opportunity  to  ply  their  trade,  1208. 
means  used  to  further  or  defeat  a  strike, 

acts  directed  toward  the  employer  and  his  property, 
violence  and  threats  of  violence,  1187. 

refusal  of  strikers  and  other  members  of  their  organiza- 
tion to  deal  with  the  employer,  purchase  his  products  or 
otherwise  deal  with  him   (primary  boycott),  1233n. 
persuading    non-striking    employes    and    others    to    break 
their  contracts  with  the  employer,  1192. 
acts  directed  toward  members  of  their  own  organization, 

imposition  and  threats  of  fines  and  expulsion,  1213,  1218n. 
acts  directed  at  workmen  continuing  in  the  employer's  service  or 
willing  to  enter  it, 

violence  or  threats  of  violence,  1187. 
persuasion,  1190-1191. 

persuasion  to  break  existing  contracts,  1192. 
picketting,  1190. 
social  ostracism,  1215. 
offering  financial  inducements,  1215n, 
"sympathetic  strikes,"  see  "Right  to  Strike," 
acts  directed  at  persons  dealing  with  the  employer  or  selling  or 

using  his  products,  1237n. 
secondary  boycotts — concerted  refusal  to  deal  with  persons  deal- 
ing with  employers  whose  workmen  are  on  strike,  1228,  1238. 
subterranean  water,  gas  and  oil,  1305. 
right  to  appropriate,  1305. 

for  use  on  premises,  1313,  1314n. 
for  use  elsewhere,  1313,  1314n. 
to  waste,  1310,  1317n. 

to  compel  adjacent  owners  to  purchase  the  land,  1305. 
to  injure  the  adjacent  owner,  1305,  1313,  1318. 
supplying  chattels  for  the  use  of  others,  see  Affirm.a.ti\t:  Obligations. 


TRESPASSERS, 

liability  of  occupiers  of  land  toward  trespassers,  see  Affirmative  Ob- 
ligations. 
forcible  ejection  of  trespassers,  see  Self-Defense. 

TRESPASS  TO  PERSONAL  PROPERTY, 

See  Trespass  Vi  et  Armis. 

TRESPASS  TO  REAL  PROPERTY, 

See  Trespass  Vi  et  Armis. 


•  INDEX  1469 

[References  are  to  Pages.] 

TRESPASS  VI  ET  ARMIS, 

history  and  early  development,  1. 

assault,  10. 

battery,  22. 

false  imprisonment,  27. 

trespass  to  real  property — trespass  qiiare  clausum  fregit,  36. 

trespass  upon  air  about  another's  land,  38. 
trespass  to  personal  property,  40. 

trespass  to  person,  whether  distinct  from  trespass  for  assault  and  bat- 
tery, 48. 
essential  elements  of  trespass  vi  et  arniis, 
injury  to  the  plaintiff, 

necessity  of  actual  harm  to  the  plaintiff — in  assault,  10-43. 
in  battery,  20-23-26. 
in  false  imprisonment,  27. 
in  trespass  to  real  property,  36.  i7,  44. 
in  trespass  to  personal  property,  40. 
volition, 

liability  for  involuntary  acts — in  battery,  45. 
in  trespass  to  real  property,  50. 
intention  to  injure  plaintiff  in  assault, 
actual  intention,  11,  13,  16. 
apparent  intention,   18. 
intention  to  frighten,  20. 

intention  to  deprive  plaintiff  of  his  liberty  in  false  impris- 
onment, 49. 
culpability,  is  moral  or  social  fault  essential  to  liability  in  actions 
of  trespass? — assault  and  battery  and  trespass  to  the  person, 
55,  57. 

false  imprisonment,  61. 

trespass  to  real  property,  65,  67,  68. 

trespass  to  personal  property,  70. 


V 


VOLUNTARY  ASSUMPTION  OF  RISK, 

by  one  associating  himself  voluntarily,  that  is  without  right  independ- 
ent of  such  associate's  consent  with  another,  in  his  business  or  prop- 
erty, with  knowledge  of  the  dangers  involved  in  such  association, 
servants  injured  by  dangerous  conditions  known  by  them  to  ex- 
ist in  their  employer's  plant,  331. 
licensee  or  visitors   injured  by   defects   known   to   exist  in   the 
premises,  442. 
by  one  who  with  full  knowledge  of  a  peril  created  by  another  deliber- 
ately chooses  to  encounter  it  in  the  exercise  of  a  right  in  himself 
and  not  dependent  upon  the  consent  of  such  other — deliberate  choice 
to  encounter  a  known  peril  wrongfully  created  by  another,  see  Con- 
tributory Fa>ult. 


X470  INDEX 

{References  are  to  Pages.] 

W 

WITNESSES, 

liability  of  witnesses  for  injury  caused  by  their  testimony,  972. 
liability  for  defamation,  see  Privileged  Communications.' 


APPENDIX  A. 

Master  and  Servant. 


SECTION   I. 
The  '•  Fellow  Servant  Rule." 


PRIESTLEY  V.   FOWLER. 
Court  of  Exchequer,  1837.    3  M.  &  W.  1. 

Case. — I'he  declaration  stated  that  the  plaintiff  was  a  servant 
of  the  defendant  in  his  trade  of  a  butcher;  that  the  defendant 
had  desired  and  directed  the  plaintiff,  so  being  his  servant,  to 
go  with  and  take  certain  goods  of  the  defendant's,  in  a  certain  van 
of  the  defendant  then  used  by  him,  and  conducted  by  another 
of  his  servants,  in  carrying  goods  for  hire  upon  a  certain  journey ; 
that  the  plaintiff,  in  pursuance  of  such  desire  and  direction,  ac- 
cordingly commenced  and  was  proceeding  and  being  carried  and 
conveyed  by  the  said  van,  with  the  said  goods;  and  it  became 
the  duty  of  the  defendant  on  that  occasion,  to  use  due  and 
proper  care  that  the  said  van  should  be  in  a  proper  state  of  re- 
pair, that  it  should  not  be  overloaded,  and  that  the  plaintiff 
should  be  safely  and  securely  carried  thereby;  nevertheless,  the 
defendant  did  not  <ise  proper  care  that  the  van  should  be  in  a 
sufficient  state  of  repair,  or  that  it  should  not  be  overloaded, 
or  that  the  plaintiff  should  be  safely  and  securely  carried  thereby, 
in  consequence  of  the  neglect  of  all  and  each  of  which  duties 
the  van  gave  way  and  broke  down,  and  the  plaintiff  was  thrown 
with  violence  to  the  ground,  and  his  thigh  was  thereby  frac- 
tured,   etc. 

Plea,  not  guilty. 

At  the  trial  before  Park,  J.,  at  the  Lincolnshire  Summer  As- 
sizes, 1836,  the  plaintiff,  having  given  evidence  to  show  that  the 
injury  arose  from  the  overloading  of  the  van,  and  that  it  was 
so  loaded  with  the  defendant's  knowledge,  had  a  verdict  for 
iioo.  In  the  following  Michaelmas  Term,  Adams,  Serjt.,  ob- 
tained a  rule  to  show  cause  why  the  judgment  should  not  be  ar- 
rested, on  the  ground  that  the  defendant  was  not  liable  in  law. 
under  the  circumstances  stated  in  the  declaration.  In  Hilary 
Term, 

Lord  Abinger,  C.  B. — This  was  a  motion  in  arrest  of  judgment, 
after  verdict  for  the  plaintiff,  upon  the  insufficiency  of  the  declara- 
tion. [His  lordship  stated  the  declaration.]  It  has  been  objected 
to  this  declaiation,  that  it  contains  no  premises  from  which  the  duty 
of  the  defendant,  as  therein  alleged,  can  be  inferred  in  law;  or,  in 
other  words,  that  from  the  mere  relation  of  master  and  servant  no 
contract,  and  therefore  no  duty,  can  be  implied  on  the  part  of  the 
master  to  cause  the  servant  to  be  safely  and  securely  carried,  or 

I 


APPENDIX. 


to  make  the  master  liable  for  damage  to  the  servant,  arising  from 
any  vice  or  imperfection,  unknown  to  the  master,  in  the  carriage, 
or  in  the  mode  of  loading  and  conducting  it.  For,  as  the  declara- 
tion contains  no  charge  that  the  defendant  knew  of  any  of  the  de- 
fects mentioned,  the  Court  is  not  called  upon  to  decide  how  far 
such  knowledge  on  his  part  of  a  defect  unknown  to  the  servant, 
would  make  hun  liable. 

It  is  admitted  that  there  is  no  precedent  for  the  present  action 
by  a  servant  against  a  master.  We  are  therefore  to  decide  the 
question  upon  general  principles,  and  in  doing  so  we  are  at  liberty 
to  look  at  the  consequences  of  a  decision  the  one  way  or  the  other. 

If  the  master  be  liable  to  the  servant  in  this  action,  the  prin- 
ciple of  that  liability  will  be  found  to  carry  us  to  an  alarming  extent. 
He  who  is  responsible  by  his  general  duty,  or  by  the  terms  of  his 
contract,  for  all  the  consequences  of  negligence  in  a  matter  in 
which  he  is  the  principal,  is  responsible  for  the  negligence  of  all  nis 
inferior  agents.  If  the  owner  of  the  carriage  is  therefore  responsi- 
ble for  the  sufficiency  of  his  carriage  to  his  servant,  he  is  responsible 
for  the  negligence  of  his  coachmaker,  or  his  harness  maker,  or  his 
coachman.  The  footman,  therefore,  who  rides  behind  the  carriage, 
may  have  an  action  against  his  master  for  a  defect  in  the  carriage, 
owing  to  the  negligence  of  the  coachmaker,  or  for  a  defect  in  the 
harness  arising  from  the  negligence  of  the  harness  maker,  or  for 
drunkenness,  neglect,  or  w'ant  of  skill  in  the  coachman ;  nor  is  there 
any  reason  why  the  principle  should  not,  if  applicable  in  this  class 
of  cases,  extend  to  many  others.  The  master,  for  example,  would 
be  liable  to  the  servant  for  the  negligence  of  the  chambermaid,  for 
putting  him  into  a  damp  bed ;  for  that  of  the  upholsterer,  for  sending 
in  a  crazy  bedstead,  wdiereby  he  was  made  to  fall  down  while  asleep 
and  injure  himself;  for  the  negligence  of  the  cook,  in  not  properly 
cleaning  the  copper  vessels  used  in  th^  kitchen ;  of  the  butcher,  in 
supplying  the  family  with  meat  of  a  quality  injurious  to  the  health: 
of  the  builder,  for  a  defect  in  the  foundation  of  the  house,  whereby 
it  fell,  and  injured  both  the  master  and  the  servant  by  the  ruins. 

The  inconvenience,  not  to  say  the  absurdity  of  these  conse- 
quences, affords  a  sufficient  argument  against  the  application  or  this 
principle  to  the  present  case.  But,  in  truth,  the  mere  relation  of 
the  master  and  the  servant  never  can  imply  an  obligation  on  the 
part  of  the  master  to  take  more  care  of  the  servant  than  he  may  rea- 
sonably be  expected  to  do  of  himself.  He  is,  no  doubt,  bound  to 
provide  for  the  safety  of  his  servant  in  the  course  of  his  employ- 
ment, to  the  best  of  his  judgment,  information,  and  belief.  The 
servant  is  not  bound  to  risk  his  safety  in  the  service  of  his  master, 
and  may,  if  he  thinks  fit.  decline  any  service  in  which  he  reasonably 
apprehends  injury  to  himself;  and  in  most  of  the  cases  in  which 
danger  may  be  incurred,  if  not  in  all,  he  is  just  as  likely  to  be  ac- 
quainted with  the  probability  and  extent  of  it  as  the  master.  In  that 
sort  of  employment,  especially,  which  is  described  in  the  declaration 
in  this  case,  the  plaintiff  must  have  known  as  well  as  his  master, 
and  probably  better,  whether  the  van  was  sufficient,  whether  it  was 
overloaded,  and  whether  it  was  likely  to  carry  him  safely.     In  tact. 


FARWF.LL  V.  liOSTON  \-  WORCESTER  R.  R.  CCJRI'ORATIOX.  3 

to  allow  this  sort  of  action  to  prevail  would  be  an  encouragement  to 
the  servant  to  omit  that  diligence  and  caution  which  he  is  in  duty 
bound  to  exercise  on  the  behalf  of  his  master,  to  protect  him 
against  the  misconduct  or  negligence  of  others  who  serve  him,  and 
which  diligence  and  caution,  while  they  protect  the  master,  are  a 
much  better  security  against  any  injury  the  servant  may  sustain  by 
the  negligence  of  others  engaged  imder  the  same  master,  than  any 
recourse  against  his  master  for  damages  could  possibly  afford. 

We  are  therefore  of  opinion  that  the  judgment  ought  to  be  ar- 
rested. 

Rule  absolute. 


FARWELL    V.    BOSTON    AND    WORCESTER    RAILROAD 
CORPORATION. 

Supreme  Judicial  Court  of  Massachusetts,  1842.     4  Metcalf,  49. 

The  case  was  submitted  to  the  Court  on  the  following  facts 
agreed  by  the  parties:  "The  plaintiff  was  employed  by  the  defend- 
ants, in  1835,  as  an  engineer,  and  went  at  first  with  the  merchandise 
cars,  and  afterwards  with  the  passenger  cars,  and  so  continuerl 
till  October  30th,  1837,  at  the  wages  of  two  dollars  per  day;  that 
being  the  usual  wages  paid  to  engine-men,  which  are  higher  than 
the  wages  paid  to  a  machinist,  in  which  capacity  the  plaintiff  for- 
merly was  employed. 

"On  the  30th  of  October,  1837,  the  plaintiff',  then  being  in  the 
employment  of  the  defendants,  as  such  engine-man,  and  running  the 
passenger  train,  ran'*his  engine  off  at  a  "switch  on  the  road,  which 
had  been  left  in  a  wrong  condition,  (as  alleged  by  the  plaintiff,  and, 
for  the  purposes  of  this  trial,  admitted  by  the  defendants),  by  one 
\\'hitcomb,  another  servant  of  the  defendants,  who  had  been  long 
in  their  employment,  as  a  switchman  or  tender,  and  had  the  care  of 
switches  on  the  road,  and  was  a  careful  and  trustworthy  servant,  in 
his  general  character,  and  as  such  servant  was  well  known  to  the 
plaintiff.  By  which  running  off,  the  plaintiff  sustained  the  injury 
complained  of  in  his  declaration. 

"The  said  Farwell  (the  plaintiff)  and  Whitcomb  were  both  ap- 
pointed by  the  superintendent  of  the  road,  who  was  in  the  habit  of 
passing  over  the  same  very  frequently  in  the  cars,  and  often  rode 
on  the  engine. 

"If  the  court  shall  be  of  opinion  that,  as  matter  of  law,  the  de- 
fendants are  not  liable  to  the  plaintiff,  he  being  a  servant  of  the 
corporation,  and  in  their  employment,  for  the  injury  he  may  have 
received  from  the  negligence  of  said  Whitcomb,  another  servant  of 
the  corporation,  and  in  their  employment,  then  the  plaintiff  shall 
become  nonsuit;  but  if  the  court  shall  be  of  opinion,  as  matter  of 
law.  that  the  defendants  may  be  liable  in  this  case,  then  the  case 
shall  be  submitted  to  a  jury  upon  the  facts  which  may  be  proved  in 
the  case ;  the  defendants  alleging  negligence  on  the  part  of  the 
plaintiff." 


4  APPKXDIX. 

C.  G.  LoRiNG,  for  the  plaintiff.  The  defendants,  having  em- 
ployed the  plaintiff  to  do  a  specified  duty  on  the  road,  were  bound 
to  keep  the  road  in  such  a  condition  that  he  might  do  that  duty  with 
safety.  If  the  plaintiff  had  been  a  stranger,  the  defendants  would 
have  been  liable ;  and  he  contends  that  the  case  is  not  varied  by  the 
fact  that  both  the  plaintiff'  and  Whitcomb  were  the  servants  of  the  de- 
fendants ;  because  the  plaintiff  was  not  the  servant  of  the  defend- 
ants in  the  duty  or  service,  the  neglect  of  which  occasioned  the 
injury  sustained  by  him.  He  was  employed  for  a  distinct  and  sepa- 
rate service,  and  had  no  joint  agency  or  power  with  the  other  serv- 
ants whose  duty  it  was  to  keep  the  road  in  order;  and  could  not  be 
made  responsible  to  the  defendants  for  its  not  being  kept  in  order. 
He  could  not,  by  any  vigilance  or  any  power  that  he  could  exercise, 
have  prevented  the  accident.  His  duties  and  those  of  Whitcomb 
were  as  distinct  and  independent  of  each  other,  as  if  they  had  been 
servants  of  different  masters. 

The  plaintiff  does  not  put  his  case  on  the  ground  of  the  defend- 
ants' liability  to  passengers,  nor  upon  the  general  principle  which 
renders  principals  liable  for  the  acts  of  their  agents;  but  on  the 
ground,  that  a  master,  by  the  nature  of  his  contract  with  a  servant, 
stipulates  for  the  safety  of  the  servant's  employment,  so  far  as  the 
master  can  regulate  the  matter. 

The  defense  rests  upon  an  alleged  general  rule,  that  a  master  is 
not  liable  to  his  servant  for  damage  caused  by  the  negligence  of  a 
fellow-servant.  But  if  that  be  sound,  as  a  general  rule,  it  does  not 
apply  here;  for  Whitcomb  and  the  plaintiff,  as  has  already  been 
stated,  were  not  fellow-servants — that  is,  were  not  jointly  employed 
for  a  common  purpose. 

The  case  of  Priestley  v.  Fowler,  3  Mees.  &  Welsh,  i,  on  which 
the  defendants  will  rely,  was  rightly  decided.  The  case  was  clearly 
one  of  equal  knowledge  on  the  part  of  the  two  servants,  and  of 
voluntary  exposure  by  the  plaintiff  to  a  known  hazard  not  required 
by  his  duty;  and  both  servants  were  jointly  engaged  in  the  same 
business  when  the  accident  happened  to  the  plaintiff.  But  the  rea- 
soning and  dicta  of  the  court  went  much  beyond  the  case — in  un- 
dertaking to  lay  down  a  general  rule,  as  applying  to  all  cases  of 
damages  sustained  by  a  servant  in  the  emplovment  of  his  master, 
without  discrimination  as  to  the  peculiar  relations  of  the  servant, 
and  the  causes  of  the  injury  received  by  him — and  lead  to  un- 
sound conclusions. 

No  general  rule  can  be  laid  down,  which  will  apply  to  all  cases 
of  a  master's  liability  to  a  servant.  But  it  is  submitted  that  a  mas- 
ter is  liable  to  one  servant  for  the  negligence  of  another,  when  they 
are  engaged  in  distinct  employments,  though  he  is  not  so  liable, 
where  two  servants  are  engaged  jointly  in  the  same  service ;  because, 
in  the  latter  case,  each  servant  has  some  supervision  and  control  of 
every  other.  This  principle  may  be  illustrated  by  the  relation  which 
subsists  between  the  owner  of  a  ship  and  the  master  and  crew.  The 
owner  contracts  with  them  to  navigate  his  ship,  and  of  necessity  he 
impliedlv  contracts  that  she  is  capable  of  navigation— seaworthy 
for  the  voyage.    And  if  she  prove  otherwise,  by  reason  of  the  care- 


FARVVKLL  Z\   IlOS'l'OX   \-   WORCESTER  R.  R.  CORPORA  TIOX.  5 

lessness  of  the  builder  or  the  shipwright  employed  to  repair  her, 
and  the  master  and  crew  lose  their  wages,  the  owner  must  be  liable 
and  pay  a  full  indemnity ;  and  he  has  liis  remedy  against  the  ship- 
wright. See  Eaken  v.  Thom,  5  Esp.  R.  6.  Abbott  on  Ship.  (4th 
Amer.  ed.)  457.  In  such  case,  the  master  and  crew  have  no  remedy 
against  the  shipwright  by  whose  misconduct  they  suffer,  because 
there  is  no  privity  of  contract  between  him  and  them.  But  there 
is  a  privity  of  contract  between  them  and  the  ship-owner,  and  this 
gives  a  perfect  remedy,  in  the  theory  of  the  law.  Many  similar  illus- 
trations of  the  principle  might  be  given.  And  unless  the  servant  has 
a  remedy  against  the  master,  in  such  cases,  the  great  fundamental 
legal  rule,  that  where  there  is  a  wrong  there  is  a  remedy,  is  violated 
or  departed  from. 

In  case  of  servants  jointly  employed  in  the  same  business,  it 
may  reasonably  be  inferred  that  they  take  the  hazard  of  injuries 
from  each  other's  negligence ;  because  such  hazard  is  naturally  and 
necessarily  incident  to  such  employment ;  because  they  have,  to  a 
great  extent,  the  means  of  guarding  against  such  injuries,  by  the 
exercise  of  mutual  caution  and  prudence,  while  the  master  has  no 
such  means ;  and  because,  between  persons  employed  in  a  joint 
service,  there  is  a  privity  of  contract,  that  renders  them  liable  to 
each  other  for  their  carelessness  or  neglect  in  the  discharge  of  such 
service. 

It  is  a  well  settled  general  rule  that  a  servant  is  not  liable  to 
third  persons  for  his  neglect  of  duty.  Story  on  Agency,  §§  308,  309. 
If  that  principle  applies  to  this  case,  so  that  the  plaintiff  has  no 
remedy  against  Whitcomb,  it  would  seem  to  be  a  sufficient  reason 
for  holding  the  defendants  liable. 

It  is  also  a  well-established  rule,  thaf  if  an  agent,  without  his 
own  default,  has  incurred  loss  or  damage  in  transacting  the  busi- 
ness of  the  principal,  he  is  entitled  to  full  compensation.  Story  on 
Agency,  §  339. 

Fletcher  &  Morey,  for  the  defendants.  The  plaintiff  must 
maintain  his  action,  if  at  all,  either  on  the  rule  of  respondeat  supe- 
rior, as  for  a  tort,  or  on  an  implied  contract  of  indemnity.  The  early 
cases  in  which  masters  were  held  liable  to  a  stranger  in  an  action  of 
tort,  for  the  misconduct  of  their  servants,  were  mostly  those  which 
respected  the  safety  of  passengers  on  highways,  and  were  decided  on 
grounds  of  policy.  The  doctrine  of  such  liability  was  afterwards 
extended  to  cases  that  were  deemed  analogous.  See  i  Bl.  Com.  432, 
Christian's  note.  But  no  rule  of  policy  requires  that  masters  shall  be 
liable  to  one  servant  for  injuries  received  by  him  from  a  fellow- 
servant.  On  the  contrary,  policy  requires  an  entirely  different 
rule,  especially  in  the  present  case.  The  aim  of  all  the  statutes  con- 
cerning railroads  is  to  protect  passengers;  and  if  this  action  is 
maintained,  it  will  establish  a  principle  which  will  tend  to  diminish 
the  caution  of  railroad  servants,  and  thus  increase  the  risk  of  pas- 
sengers. 

The  defendants  have  been  in  no  fault,  in  this  case,  either  in 
the  construction  of  their  road,  the  use  of  defective  engines,  or  the 
employment  of  careless  or  untrusty  servants.     So  that  the  question 


b  APPENDIX. 

is,  whether  they  are  liable  to  the  plaintiff,  on  an  implied  contract 
of  indemnity.  The  contract  between  the  parties  to  this  suit  ex- 
cludes the  notion  that  the  defendants  are  liable  for  the  injury  re- 
ceived by  the  plaintiff.  He  agreed  to  run  an  engine  on  their  road, 
knowing  the  state  of  the  road,  and  also  knowing  Vv'hitcomb,  his 
character,  and  the  specific  duty  intrusted  to  him.  The  plaintiff 
therefore  assumed  the  risks  of  the  service  which  he  undertook  to 
perform ;  and  one  of  those  risks  was  his  liability  to  injury  from  the 
carelessness  of  others  who  were  employed  by  the  defendants  in  the 
same  service.  As  a  consideration  for  the  increased  risk  of  this  serv- 
ice, he  received  higher  wages  than  when  he  was  employed  in  a  less 
hazardous  business. 

The  defendants  are  doubtless  bound,  by  an  implied  contract,  to 
use  all  the  ordinary  precautions  for  the  safety  of  passengers,  and 
are  liable  for  injuries  which  a  passenger  may  receive  in  conse- 
quence of  the  negligence  of  their  servants.  But  the  plaintiff  was  not 
a  passenger,  and  his  counsel  does  not  place  his  claim  on  that  ground. 

The  only  cases  in  which  a  servant  has  attempted  to  recover  of 
a  master  for  another  servant's  misconduct  are  Priestly  v.  Fozclcr, 
3  Alees.  &  Welsh,  i,  and  Murray  v.  South  Carolina  Railroad  Com- 
pany, I  McMullan,  385  ;  and  in  both  those  cases,  it  was  held  that 
the  action  could  not  be  maintained.  In  those  cases,  it  is  true  that 
both  servants  were  on  the  same  carriage  when  the  accident  hap- 
pened by  which  one  of  them  was  injured.  And  the  counsel  for  the 
present  plaintiff  has  invented  a  rule  of  law,  in  order  to  escape  from 
the  pressure  of  those  decisions.  But  admitting  the  distinction,  and 
the  rule  which  he  advances,  to  be  sound,  the  case  at  bar  is  not 
thereby  affected.  The  plaintiff  and  \Miitcomb  were  not  engaged 
in  distinct  and  separate  employments,  but  in  the  same  service.  They 
both  were  acting  to  the  same  end,  although  they  had  different  parts 
to  perform. 

It  will  not  be  necessary  for  the  court  to  lay  down  a  general 
rule,  in  order  to  decide  this  case  for  the  defendants.  Ordinary  care 
is  all  that  a  master  is  bound  to  use  in  behalf  of  his  servants ;  and 
the  defendants  have  used  such  care.  They  used  due  diligence  in 
selecting  Whitcomb.  who  was  careful  and  trustworthy.  The  case  is 
analogous  to  that  of  a  ship-owner,  who  is  insured,  and  who  has  em- 
ployed a  competent  master  and  crew.  Though  his  ship  is  lost  by 
the  negligence  of  some  of  the  crew,  yet  he  does  not  thereby  suffer 
the  loss  of  his  insurance.    Walker  v.  Maitland,  5  Barn.  &  Aid.  174. 

LoRiNG,  in  reply.  In  the  case  in  i  Mc^Iullan,  385,  the  plaintiff, 
as  in  the  case  in  3  Mees.  &  Welsh,  i,  was  jointly  engaged  in  the 
same  service  with  the  other  servant,  whose  negligence  caused  the 
injurv.  It  therefore  does  not  affect  the  principle  on  which  the  pres- 
ent plaintiff  rests  his  cause. 

Shaw,  C.  J. :  This  is  an  action  of  new  impression  in  our  courts, 
and  involves  a  principle  of  great  importance.  It  presents  a  case, 
where  two  persons  are  in  the  service  and  employment  of  one  com- 
pany, Avhose  business  it  is  to  construct  and  maintain  a  railroad,  and 
to  employ  their  trains  of  cars  to  carry  persons  and  merchandise  for 
hire.    They  are  appointed  and  employed  by  the  same  company  to 


1 


FARWF.LL  V.  HOSTON   .K:   VVORCKSTKR  R.  R.  CORPORATION.  / 

perform  separate  duties  and  services,  all  tending  to  the  accomplish- 
ment of  one  and  the  same  purpose— that  of  the  safe  and  rapid 
transmission  of  the  trains;  and  they  are  paid  for  their  respective 
services  according  to  the  nature  of  their  respective  duties,  and  the 
labor  and  skill  required  for  their  proper  performance.  The  question 
is,  whether,  for  damages  sustained  by  one  of  the  persons  so  em- 
])l'oyed,  by  means  of  the  carelessness  and  negligence  of  another, 
the' party  injured  has  a  remedy  against  the  common  employer.  It 
is  an  argument  against  such  an  action,  though  certainly  not  a  de- 
cisive one,  that  no  such  action  has  before  been  -maintained. 

It  is  laid  4own  by  Blackstone  that  if  a  servant,  by  his  negli- 
gence, does  any  damage  to  a  stranger,  the  master  shall  be  answer- 
able for  his  neglect.  But  the  damage  must  be  done  while  he  is  actu- 
ally employed  in  the  master's  service;  otherwise,  the  servant  shall 
answer  for  his  own  misbehavior,  i  Bl.  Com.  431.  M'Manus  v. 
Crickett,  i  East,  106.  This  rule  is  obviously  founded  on  the  great 
principle  of  social  duty,  that  every  man,  in  the  management  of  his 
own  afifairs,  whether  by  himself  or  by  his  agents  or  servants,  shall 
so  conduct  them  as  not  to  injure  another;  and  if  he  does  not,  and 
another  thereby  sustains  damage,  he  shall  answer  for  it.  If  done 
by  a  servant,  in  the  course  of  his  employment,  and  acting  within 
the  scope  of  his  authority,  it  is  considered,  in  contemplation  of  law, 
so  far  the  act  of  the  master,  that  the  latter  shall  be  answerable  f!^';7- 
itcr.  But  this  presupposes  that  the  parties  stand  to  each  other  in  the 
relation  of  strangers,  between  whom  there  is  no  privity;  and  the 
action,  in  such  case,  is  an  action  sounding  in  tort.  The  form  is 
trespass  on  the  case,  for  the  consequential  damage.  The  maxim  re- 
spondeat superior  is  adopted  in  that  case,,  from  general  considera- 
tions of  policy  and  seg.irity. 

But  this  does  not  apply  to  the  case  of  a  servant  bringing  his 
action  against  his  own  employer  to  recover  damages  for  an  injury 
arising  in  the  course  of  that  employment,  where  all  such  risks  and 
perils  as  the  employer  and  the  servant  respectively  intend  to  as- 
sume and  bear  may  be  regulated  by  the  express  or  implied  contract 
between  them,  and  which,  in  contemplation  of  law,  must  be  pre- 
sumed to  be  thus  regulated.^ 

The  same  view^  seems  to  have  been  taken  by  the  learned  counsel 
for  the  plaintiff  in  the  argument;  and  it  was  conceded,  that  the 
claim  could  not  be  placed  on  the  principle  indicated  by  the  maxim 
respondeat  superior,  which  binds  the  master  to  indemnifv  a  stranger 
for  the  damage  caused  by  the  careless,  negligent  or  unskillful  act  of 
his  servant  in  the  conduct  of  his  affairs.  The  claim,  therefore,  is 
placed,  and  must  be  maintained,  if  maintained  at  all,  on  the  ground 
of  contract.  As  there  is  no  express  contract  between  the  parties,  ap- 
plicable to  this  point,  it  is  placed  on  the  footing  of  an  implied  con- 
tract of  indemnity,  arising  out  of  the  relation  of  master  and  servant. 
It  woirld  be  an  implied  promise,  arising  from  the  duty  of  the  master 


■"'This  is  right  in  substance  but  a  modern  jurist  would  probably  pre- 
fer to  say  that  the  relation  was  one  wherein  the  duties  and  liabilitcs  of 
both  parties  were  fixed  by  law."  Hon.  John  F.  Dillon,  24  Am.  Law  Rev., 
p.  180. 


8  APPENDIX. 

to  be  responsible  to  each  person  employed  by  him,  in  the  conduct  of 
every  branch  of  business,  where  two  or  more  persons  are  employed, 
to  pay  for  all  damage  occasioned  by  the  negligence  of  every  other 
person  employed  in  the  same  service.  If  such  a  duty  were  estab- 
lished by  law — like  that  of  a  common  carrier,  to  stand  to  all  losses 
of  goods  not  caused  by  the  act  of  God  or  of  a  public  enemy — or  that 
of  an  innkeeper,  to  be  responsible,  in  like  manner,  for  the  baggage 
of  his  guests;  it  would  be  a  rule  of  frequent  and  familiar  occur- 
rence, and  its  existence  and  application,  with  all  its  qualifications  and 
restrictions,  would  be  settled  by  judicial  precedents.  But  we  are  of 
opinion  that  no  such  rule  has  been  established,  and  the  authorities, 
as  far  as  they  go,  are  opposed  to  the  principle.  Priestley  v.  Fozvler, 
3  Alees.  &  Welsh,  i.  Murray  v.  South  Carolina  Railroad  Cotnpanx, 
I  McMullan,  385. 

The  general  rule,  resulting  from  considerations  as  well  of  jus- 
tice as  of  policy,  is,  that  he  who  engages  in  the  employment  of  an- 
other for  the  performance  of  specified  duties  and  services,  for  com- 
pensation, takes  upon  himself  the  natural  and  ordinary  risks  and 
perils  incident  to  the  performance  of  such  services,  and  in  legal 
presumption,  the  compensation  is  adjusted  accordingly.-    And   we 


"While  the  great  majority  of  cases  agree  in  resting  the  master's 
exemption  from  liability  upon  an  implied  term  in  the  contract  between  him 
and  his  servant  whereby  the  latter  assumes  the  risk  of  injury  from  the  mis- 
conduct of  his  fellow  service,  considerable  difference  of  opinion  is  ex- 
hibited as  to  the  reasons  requiring  such  a  term  to  be  implied.  The  servant's 
knowledge  that  "he  was  exposed  to  the  risk  of  injury  from  a  want  of  [skill 
and  care]  on  the  part  of  a  fellow  servant"  (Alderson,  B..  Hutch.inson  v. 
Ry.,  5  Exch.  343  [1850],  p.  351),  either  alone  or  in  conjunction  with  his 
knowledge  that  "against  such  w^ant  of  care  his  employer  cannot  by  any 
possibility  protect  him"  (Lord  Cranworth,  Bartonshill  Co.  v.  Re'id,  3  Macq.  266 
fi868],  p.  284).  it  is  often  said,  "makes  it  reasonable  to  presume  that  each  ser- 
vant agrees,  to  run  the  risk  of  that  which  he  knows  to  be  in  the  nature 
of  things  inevitable"  (Beasly.  C  J.,  Paulmicr  v.  R.  R..  34  X.  J.  L.  151  [1870]. 
p.  155).  In  other  cases  these  risks  are  said  to  have  been  considered  in  the 
adjustment  of  the  servant's  wages.  Blackburn,  J..  Morgan  v.  Vale  of  Neath 
Ry.  Co.,  5  B.  &  S.  504  (1864'),  p.  579;  so  Doe,  J.,  says,  "the  servant  has  agreed 
to  bear  and  is  paid  for  bearing  the  risks  incident  to  the  service  :  the  stranger 
has  not  made  such  an  agreement  and  is  not  paid  for  bearing  such  risks:" 
Fi field  V.  R.  R.,  42  N.  H.  225  C1860),  p.  235;  similar  expressions  are  used 
in  Coon  V.  R.  R.,  6  Barb.  (N.  Y.)  231,  (1849),  p.  243;  Russell  \.  R.  R..  17 
N.  Y.  135  (1858).  p.  137,  per  Selden,  J.;  Sullivan  v.  R.  R..  11  Iowa,  421  (i860), 
p.  423;  Mobile,  etc.,  R.  R.  v.  Smith,  59  Ala.  245  (1877).  P-  252.  and  in  Chi- 
cago, etc.,  R.  R.  V.  Harney,  28  Ind.  28  (1807).  Frazer.  J.,  says.  p.  30:  "The 
ordinary  risks  of  the  service  are  usually,  in  fact,  considered  in  making  the  em- 
ployment and  adjusting  the  wages,  and  this  may  with  great  propriety  be  held 
to  be  alwavs  so  in  legal  contemplation,"  but  see  Pollock,  C.  B..  Abraham  v. 
Reynolds,  5  H.  &  N.  143  (i860),  says,  p.  147:  "The  test  is  not  whether 
the  party  complaining  is  paid  to  undertake  the  risk.  A  guest  is  in  the  same 
position  as  a  servant  because  he  has  the  means  of  judging  of  the  character 
of  the  house  in  which  he  is"  :  but  see  Bramwell.  B..  Dcgg  v.  Midland  Ry. 
Co.,  I  H.  &  N.  773  (1857).  p.  780.  who  holds  that  while  "the  consideration 
mav  not  be  as  obvious,  it  is  as  competent  for  a  man  to  agree,  and  as  reasonable 
to  hold  that  he  does  agree,  that  if  allowed  to  assist  in  the  work,  though  not 
paid,  he  will  take  care  of  himself  from  the  negligence  of  fellow  workmen,  as 
it  would  be  if  paid  for  his  services."  . 

Nor  has  the  doctrine  that  the  servant's  mability  to  recover  from  his 
master  for  injuries  received  by  a  fellow  servant's  negligence,  itself,  escapea 


FARWKLL  7'.  iiosTON  .V  vvorci:s'h:k  r.  r.  corporation.  9 

are  not  aware  of  any  principle  which  should  except  the  perils  aris- 
ing from  the  carelessness  and  negligence  of  those  who  are  in  the 
same  employment.  These  are  perils  which  the  servant  is  as  likely  to 
know,  and  against  which  he  can  as  effectually  guard,  as  the  master. 
They  are  penis  incident  to  the  service,  and  which  can  be  as  distinctly 
foreseen  and  provided  for  in  the  rate  of  compensation  as  any  others. 
To  say  that  the  master  shall  be  responsible  because  the  damage  is 
caused  by  his  agents,  is  assuming  the  very  point  which  remains  to 
be  proved.  They  are  his  agents  to  some  extent,  and  for  some  pur- 
poses; but  whether  he  is  responsible,  in  a  particular  case,  for  their 
negligence,  is  not  decided  by  the  single  fact  that  they  are,  for  some 
purposes,  his  agents.  It  seems  to  be  now  well  settled,  whatever 
might  have  been  thought  formerly,  that  underwriters  cannot  excuse 
themselves  from  payment  of  a  loss  by  one  of  the  perils  insured 
against,  on  the  ground  that  the  loss  was  caused  by  the  negligence  or 
unskillfulness  of  the  officers  or  crew  of  the  vessel,  in  the  perform- 
ance of  their  various  duties  as  navigators,  although  employed  and 
paid  by  the  owners,  and,  in  the  navigation  of  the  vessel,  their  agents. 
Copeland  v.  Nezv  England  Marine  Ins.  Co.,  2  Met.  440-443,  and 


severe  and  searching  judicial  criticism.  "However  plausible  may  be  the 
theory,"  says  McCurdy,  J.,  in  Burke  v.  R.  R.,  34  Conn.  474  (1867),  p.  479, 
"it  is  very  doubtful  whether  in  fact  a  spinner  in  a  factory  or  a  fireman 
on  a  railroad  ever  made  an  examination  into  the  condition  of  the  machinery, 
the  mode  of  conducting  the  business,  or  the  character  and  habits  of  the  opera- 
tives, for  the  purpose  of  ascertaining  the  extent  of  his  risk  as  an  element 
in  calculating  the  proper  amount  of  his  wages.  A  passenger  in  a  railroad 
car  may  well  be  presumed  to  have  a  vivid  consciousness  of  his  risk,  but  it 
has  never  been  understood  that  he  contracts  with  reference  to  it  when  he 
buys  his  ticket  so  as  to  be  his  own  insurer."  Lord  Benholm  says  in  Gregory 
v.  Hill.  8  MacPherson  282  (1869),  p.  287,  "Can  anything  be  more  artificial? 
I  should  say  that  you  migjit  just  as  well  presume  that  implied  contract"  (that 
no  damages  should  be  claimed  for  injuries  through  the  fault  of  a  servant) 
"in  the  case  of  a  contractor  as  in  the  case  of  a  fellow  servant,  strictly  so 
called."  Gaines,  J.,  in  St.  Louis  etc.,  R.  R.  v.  Welch,  72  Tex.  208  (1888), 
considers  the  doctrine  untenable,  "It  amounts  to  saying  that  the  law  is 
that  he  cjinnot  recover  because  he  takes  the  risk,  and  that  he  takes  it  because 
the  law  is  so.  By  a  parity  of  reasoning  we  might  assume  that  he  takes  the  risk 
of  his  master's  personal  negligence,"  and  hold  the  basis  to  be  public  policy, 
"founded  on  the  theory  that  it  is  calculated  to  make  servants  in  a  common 
employment  watchful  of  each  other,  and,  therefore,  to  promote  carefulness 
in  the  performance  of  their  duties.  So  Earl,  J.,  diss,  in  Crispin  v.  Bab- 
bitt, 81  N.  Y.  516,  says,  p.  529,  that  it  was  supposed  "that  it  would  cast  upon 
the  master  too  much  responsibility  to  hold  him  liable  for  injuries  against  which 
he  could  by  no  possibility  guard,  sustained  by  one  servant  from  the  negligence 
of  a  co-servant,  and  that  the  servants  would  be  better  protected  if  they  were 
forced  to  rely  on  their  own  care  and  vigilance  than  on  those  of  the  master. 
Hence  to  enforce  the  supposed  public  policy  a  fiction  has  been  invented  by 
which  the  servant  is  said  to  assume  all  the  risks  of  the  service,  which  includes 
the  risk  of  injuries  caused  by  the  negligence  of  co-servants."  "If  this 
fiction  were  literally  applied,"  "then  the  master  would  not  be  liable  to  such 
servant  for  his  own  negligence,  as  that  would  be  as  much  an  incident  to  the 
service  as  the  negligence  of  a  co-servant."  And  see  extract  from  letter  of 
Lord  Cairns  to  the  London  Times,  quoted  in  McFall's  pamphlet  on  Em- 
ployers' Liability,  p.  107.  "There  cannot  continue  to  be  an  implied  term  in 
contracts  where  one  of  the  parties  distinctly  repudiates  the  existence  of  any 
such  term.  That  is  now  the  position  of  the  workmen,"  and  sec  Labcitt — Master 
and  Servant,  §474,  n.  6. 


TO  .\nM:xDix. 

cases  there  cited.  I  am  aware  that  the  maritime  law  has  its  own 
rules  and  analogies,  and  that  we  cannot  always  safely  rely  upon 
them  in  applying  them  to  other  branches  of  law.  But  the  rule  in 
question  seems  to  be  a  good  authority  for  the  point,  that  persons  are' 
not  to  be  responsible,  in  all  cases,  for  the  negligence  of  those  em- 
ployed by  them.^ 

If  we  look  from  considerations  of  justice  to  those  of  policy,  they 
will  strongly  lead  to  the  same  conclusion.  In  considering  the  rights 
and  obligations  arising  out  of  particular  relations,  it  is  competent 
for  courts  of  justice  to  regard  considerations  of  policy  and  general 
convenience,  and  to  draw  from  them  such  rules  as  will,  in  their 
practical  application,  best  promote  the  safety  and  security  of  all 
parties  concerned.  This  is,  in  truth,  the  basis  on  which  implied 
promises  are  raised,  being  duties  legally  inferred  from  a  considera- 
tion of  what  is  best  adapted  to  promote^  the  benefit  of  all  persons 
concerned,  under  given  circumstances.  To  take  the  well-known  and 
familiar  cases  already  cited ;  a  common  carrier,  without  regard  to 
to  actual  fault  or  neglect  in  himself  or  his  servants,  is  made  liable 
for  all  losses  of  goods  confided  to  him  for  carriage,  except  those 
caused  by  the  act  of  God  or  of  a  public  enemy,  because  he  can  best 
guard  them  against  all  minor  dangers,  and  because,  in  case  of  actual 
loss,  it  would  be  extremely  difficult  for  the  owner  to  adduce  proof 
of  embezzlement,  or  other  actual  fault  or  neglect  on  the  part  of  the 
carrier,  although  it  may  have  been  the  real  cause  of  the  loss.  The  risk 
is,  therefore,  thrown  upon  the  carrier,  and  he  receives,  in  the  form  of 
payment  for  the  carriage,  a  premium  for  the  risk  which  he  thus  as- 
sumes. So  of  an  innkeeper;  he  can  best  secure  the  attendance  of 
honest  and  faithful  servants,  and  guard  his  house  against  thieves. 
Whereas,  if  he  were  responsible  only  upon  proof  of  actual  negligence, 
he  might  connive  at  the  presence  of  dishonest  inmates  and  retainers, 


'As  to  the  use  of  insurance  cases  as  precedents  in  actions  of  tort,  see 
Lynn  Gas  and  Electric  Co.  v.  Meriden  Fire  Ins.  Co.,  158  Mass.  570  (1893), 
p.  576. 

*See  20  Harv.  L.  Rev.,  31,  n.  i. 

Many  courts  doubt  the  poHcy  of  releasing  the  master  from  all  liability 
to  one  servant  for  the  consequences  of  the  negligence  of  a  fellow  servant, 
and  so  removing  the  strong  incentive  of  the  fear  of  financial  loss,  which  would 
move  the  master  not  only  to  require  of  his  employes  that  they  should  be  con- 
siderate of  the  safety  of  their  fellows,  as  well  as  efficient  in  serving  their  em- 
ployer's interests,  but  also  to  see  to  it  that  they  were  considerate  as  well  as 
efficient.  "It  is  by  no  means  certain."  says  McCurdy.  J.,  in  Burke  v.  R.  R. 
supra  n.  i,  "that  the  public  intecest  would  not  be  best  subserved  by  holding 
the  superior,  with  his  higher  intelligence,  his  surer  means  of  information, 
and  his  power  of  selecting,  directing  and  discharging  subordinates,  to  the 
strictest  accountability  for  their  misconduct  in  his  service,  whoever  may  be 
the  sufferer  from  it."  and  see  also  extract  from  judicial  opinions  and  text 
writers  collected  in  Notes  i  to  5,  §474.  Labatt  on  Master  and  Servant.  Con- 
trast the  conception  of  public  policy  which  hold  void  express  contracts  by 
passengers  and  shippers  assuming  the  risk  of  the  negligence  of  the  servants 
of  their  carriers,  because  to  regard  them  as  valid  would  remove  the  incentive 
to  care  necessarv  for  the  protection  of  the  lives  and  property  carried,  Quinhy 
V.  R.  R..  i=:o  Mass.  36;  Ci890\  with  that  which  holds  that  a  servant  bv  the 
mere  act  of  entering  his  master's  service  must  be  taken  to  have  impliedly 
assumed  this  very  risk,  and  see  20  Harv.  L.  R.,  23-24  and  notes. 


FARWELL  7'.  V.OSTOX  &  WORCESTER  R.  R.  CORPORATION.  II 

and  even  participate  in  the  embezzlement  of  the  property  of  the 
guests,  during  the  hours  of  their  necessary  sleep,  and  yet  it  would 
be  difficult,  and  often  impossible,  to  prove  these  facts. 

The  liability  of  passenger  carriers  is  founded  on  similar  con- 
siderations. They  are  held  to  the  strictest  responsibility  for  care, 
vigilance  and  skill,  on  the  part  of  themselves  and  all  persons  em-, 
ployed  by  them,  and  they  are  paid  accordingly.  The  rule  is  founded 
on  the  expediency  of  throwing  the  risk  upon  those  who  can  best 
guard  against  it.     Story  on  Bailments,  §590,  ct  seq. 

We  are  of  opinion  that  these  considerations  apfily  strongly 
to  the  case  in  question.  Where  several  persons  are  employed  in 
the  conduct  of  one  common  enterprise  or  undertaking,  and  the 
safety  of  each  depends  much  on  the  care  and  skill  with  which  each 
other  shall  perform  his  appropriate  duty,  each  is  an  observer  of 
the  conduct  of  the  others,  can  give  notice  of  any  misconduct,  in- 
capacity or  neglect  of 'duty,  and  leave  the  service,  if  the  common 
employer  will  not  take  such  precautions,  and  employ  such  agents 
as  the  safety  of  the  whole  party  may  require.  By  these  means,  the 
safety  of  each  will  be  much  more  effectually  secured,  than  could 
be  done  by  a  resort  to  the  common  employer  for  indemnity  in  case 
of  loss  by  the  negligence  of  each  other.  Regarding  it  in  this  light, 
it  is  the  ordinary  case  of  one  sustaining  an  injury  in  the  course  of 
his  own  employment,  in  which  he  must  bear  the  loss  himself,  or  seek 
his  remedy,  if  he  have  any,  against  the  actual  wrongdoer.  See  IV in- 
tcrhottom  v.  Wright,  10  Mees.  &  Welsh.  109.  MiUigan  v.  Wedge, 
12  Adolph.  &  Ellis,  JT,-/. 

In   applying   these   principles   to   the   present   case,    it   appears 
that  the  plaintiff  was  employed  by  the  defendants  as  an  engineer, 
at  the  rate  of  wages  usually  paid  in  that  employment,  being  a  higher 
rate  than  the  plaintiff  had  before  received  as  a  machinist.     It  was 
a  voluntary  undertaking  on  his  part,  with  a  full  knowledge  of  the 
risks  incident  to  the  "^employment ;  and  the  loss  was  sustained  by 
means  of  an  ordinary  casualty,   caused  by  the   negligence  of   an- 
other servant  of  the  company.     Under  these  circumstances,  the  loss 
must  be  deemed  to  be  the  result  of  a  pure  accident,  like  those  to 
which   all   men,    in    all    employments,   and    at    all    times,    are   more 
or   less   exposed ;   and    like    similar   losses    from   accidental   causes, 
it  must  rest  where  it  first   fell,  unless  the  plaintiff'  has  a   remedy 
against  the  person  actually  in  default;  of  which  we  give  no  opinion. 
It   was   strongly  pressed   in  the   argument,   that  although   this 
might  be  so,  where  two  or  more  servants  are  employed  in  the  same 
department  of  duty,  where  each  can  exert  some  influence  over  the 
conduct  of  the  other,  and  thus  to  some  extent  provide  for  his  own 
security ;  yet  that  it  could  not  apply  where  two  or  more  are  em- 
ployed in  different  departments  of  duty,  at  a  di.stance   from  each 
other,  and  where  one  can  in  no  degree  control  or  influence  the  con- 
duct of  another.     But  we  think  this  is   founded  upon  a  supposed 
distinction,   on    which   it   would   be   extremely   difficult  to   establish 
a  practical  rule.     When  the  object  to  be  accomplished  is  one  and 
the  same,  when   the  employers  are  the  same,  and  the  several  per- 
sons en^5loyed  derive  their  authority  and  their  compensation  from 


12  APPENDIX. 

the  same  source,  it  would  be  extremely  difficult  to  distinguish  what 
constitutes  one  department  and  what  a  distinct  department  of  duty. 
It  would  vary  with  the  circumstances  of  every  case.  If  it  were  made 
to  depend  upon  the  nearness  or  distance  of  the  persons  from  each 
other,  the  question  would  immediately  arise,  how  near  or  how 
distant  must  they  be,  to  be  in  the  same  or  different  departments. 
In  a  blacksmith's  shop,  persons  working  in  the  same  building,  at 
different  fires,  may  be  quite  independent  of  each  other,  though  only 
a  few  feet  distant.  In  a  ropewalk,  several  may  be  at  work  on 
the  same  piece  of  cordage,  at  the  same  time,  at  many  hundred  feet 
distant  from  each  other,  and  beyond  the  reach  of  sight  and  voice, 
and  yet  acting  together. 

Besides,  it  appears  to  us,  that  the  argument  rests  upon  an 
assumed  principle  of  responsibility  which  does  not  exist.  The 
master,  in  the  case  supposed,  is  not  exempt  from  liability,  be- 
cause the  servant  has  better  means  of  providing  for  his  safety, 
when  he  is  employed  in  immediate  connection  with  those  from 
whose  negligence  he  might  suffer;  but  because  the  implied  con- 
tract of  the  master  does  not  extend  to  indemnify  the  servant 
against  the  negligence  of  any  one  but  himself;  and  he  is  not 
liable  in  tort,  as  for  the  negligence  of  his  servant,  because  the 
person  suffering  does  not  stand  towards  him  in  the  relation  of  a 
stranger,  but  is  one  whose  rights  are  regulated  by  contract  ex- 
press or  implied.  The  exemption  of  the  master,  therefore,  from 
liability  for  the  negligence  of  a  fellow  servant,  does  not  depend 
exclusively  upon  the  consideration,  that  the  servant  has  better 
means  to  provide  for  his  own  safety,  but  upon  other  grounds. 
Hence  the  separation  of  the  employment  into  different  depart- 
ments cannot  create  that  liability,  when  it  does  not  arise  from 
express  or  implied  contract,  or  from  a  responsibility  created  by 
law  to  third  persons,  and  strangers,  for  the  negligence  of  a 
servant. 

A  case  may  be  put  for  the  purpose  of  illustrating  this  distinc- 
tion. Suppose  the  road  had  been  owned  by  one  set  of  pro- 
prietors whose  duty  it  was  to  keep  it  in  repair  and  have  it  at  all 
times  ready  and  in  fit  condition  for  the  running  of  engines  and 
cars,  taking  a  toll,  and  that  the  engines  and  cars  were  owned  by 
another  set  of  proprietors,  paying  toll  to  the  proprietors  of  the 
road,  and  receiving  compensation  from  passengers  for  their  car- 
riage; and  suppose  the  engineer  to  suffer  a  loss  from  the  negli- 
gence of  the  switch-tender.  We  are  inclined  to  the  opinion  that 
the  engineer  might  have  a  remedy  against  the  railroad  corpora- 
tion;  and  if  so,  it  must  be  on  the  ground,  that  as  between  the 
engineer  employed  by  the  proprietors  of  the  engines  and  cars, 
and  the  switch-tender  employed  by  the  corporation,  the  engineer 
would  be  a  stranger,  between  whom  and  the  corporation  there 
could  be  no  privity  of  contract;  and  not  because  the  engineer 
would  have  no  means  of  controlling  the  conduct  of  the  switch- 
tender.  The  responsibility  which  one  is  under  for  the  negli- 
gence of  his  servant,  in  the  conduct  of  his  business,^  towards 
third  persons,  is  founded  on  another  and  distinct  principle   from 


FARWELL  V.  BOSTON  &  WORCESTER  R.  R.  CORPORATION.  I3 

that  of  implied  contract,  and  stands  on  its  own  reasons  of  policy. 
The  same  reasons  of  policy,  we  think,  limit  this  responsibility 
to  the  case  of  strangers,  for  whose  security  alone  it  is  estab- 
lished. Like  considerations  of  policy  and  general  expediency  for- 
bid the  extension  of  the  principle,  so  far  as  to  warrant  a  serv- 
ant in  maintaining  an  action  against  his  employer  for  an  indem- 
nity which  we  think  was  not  contemplated  in  the  nature  and  terms 
of  the  employment,  and  which,  if  established,  would  not  conduce 
to  the  general  good. 

In  coming  to  the  conclusion  that  the  plaintiff,  in  the  present 
case,  is  not  entitled  to  recover,  considering  it  as  in  some  meas- 
ure a  nice  question,  we  would  add  a  caution  against  any  hasty 
conclusion  as  to  the  application  of  this  rule  to  a  case  not  fully 
within  the  same  principle.  It  may  be  varied  and  modified  b} 
circumstances  not  appearing  in  the  present  case,  in  which  it  ap- 
pears, that  no  wilful  wrong  or  actual  negligence  was  imputed  to 
the  corporation,  and  where  suitable  means  were  furnished  and 
suitable  persons  employed  to  accomplish  the  object  in  view.  We 
are  far  from  intending  to  say  that  there  are  no  implied  war- 
ranties and  undertakings  arising  out  of  the  relation  of  master  and 
servant.  Whether,  for  instance,  the  employer  would  be  respon- 
sible to  an  engineer  for  a  loss  arising  from  a  defective  or  ill- 
constructed  steam  engine :  Whether  this  would  depend  upon  an 
implied  warranty  of  its  goodness  and  sufficiency,  or  upon  the 
fact  of  wiiful  misconduct,  or  gross  negligence  on  the  part  of  the 
employer,  if  a  natural  person,  or  of  the  superintendent  or  imme- 
diate representative  and  managing  agent,  in  case  of  an  incorpo- 
rated company — are  questions  on  which  we  give  no  opinion.  In 
the  present  case,  the  claim  of  the  plaiiitiff  is  not  put  on  the 
ground  that  the  defendants  did  not  furnish  a  sufficient  engine,  a 
proper  railroad  track,  a  well-constructed  switch,  and  a  person  of 
suitable  skill  and  experience  to  attend  it;  the  gravamen  of  the 
complaint  is,  that  that  person  was  chargeable  with  negligence  in 
not  changing  the  switch,  in  the  particular  instance,  by_  means  of 
which  the  accident  occurred,  by  which  the  plaintiff  sustained  a 
severe  loss.  It  ought,  perhaps,  to  be  stated,  in  justice  to  the 
person  to  whom  this  negligence  is  imputed,  that  the  fact  is  strenu- 
ously denied  by  the  defendants,  and  has  not  been  tried  by  the  jury. 
By  consent  of  the  parties,  this  fact  was  assumed  without  trial, 
in  order  to  take  the  opinion  of  the  whole  court  upon  the  ques- 
tion of  law,  whether,  if  such  was  the  fact,  the  defendants,  under 
the  circumstances,  were  liable.  Upon  this  question,  supposing  the 
accident  to  have  occurred,  and  the  loss  to  have  been  caused,  by  the 
negligence  of  the  person  employed  to  attend  to  and  change  the 
switch,  in  his  not  doing  so  in  the  particular  case,  the  court  are 
of  opinion  that  it  is  a  loss  for  which  the  defendants  are  not  liable, 
and  that  the  action  cannot  be  maintained. 

Plaintiff  nonsuit.^ 


'Accord:— Hutchinson  v.   York,  etc.,  Ry.  Co..  5  Exch.  343   (1850):  Ran- 
dall V.  R.  R.,  109  U.  S.  478  (1883)  ;  Coon  v.  R.  R..  6  Barb.  (N.  Y.)  231  (1849), 


14 


APPENDIX. 


LoWRiE,  J.,  in  Ryan  v.  Cumberland  J'alley  Railroad  Co.,  23  Pa.  384  (1854), 
p.  386 :  The  rule  announced  by  these  cases  is,  that  where  several  persons 
are  employed  in  the  same  general  service,  and  one  is  injured  from  the  cari.- 
lessness  of  another,  the  employer  is  not  responsible. 

On  what  principle  can  a  contrary  rule  be  founded?  The  maxim,  sic 
iitcre  tuo  lit  alicnuni  non  laedas,  does  not  apply;  for  that  is  the  most  general 
of  all  rules,  intended  to  define  the  duties  of  those  who  have  no  other  relation 
than  contiguity  and  a  common  humanity.  It  is  intended  as  the  general  rule, 
defining  the  general  relation  of  man  in  society,  and  not  any  of  the  special 
relations,  which  must  have  their  own  rules,  depending  upon  their  special 
character.  Our  question  is,  therefore,  reduced  to  this :  What  is  there  in  the 
special  relation  of  master  and  servant  from  which  a  contrary  rule  can  be 
deduced? 

With  us  this  relation  is  always  instituted  by  a  contract,  and  to  that 
we  must  look  for  the  principal  terms  by  which  it  is  defined.  The  contract 
defines  the  duty  of  each  party;  and  as  we  do  not  find  that  the  duty  which  is 
now  insisted  on  was  made  a  part  of  the  contract,  we  infer  that  it  has  no 
existence. 

But  it  must  be  conceded  that  many  of  the  relations  of  life  are  instituted 
in  the  most  general  terms,  and  that  the  special  duties  of  each  party  are 
so  well  understood  in  society  that  they  are  left  entirely  undefined  in  the 
contract,  and  each  is  presumed  to  have  undertaken  them  without  their  being 
formally  specified.  Certainly  no  one  will  pretend  that  the  dut}'  here  insisted 
upon  nas,  in  this  way,  become  part  of  this  contract;  for  no  one  so  under- 
stands it,  and  no  one  would  so  contract  if  requested. 

There  is,  therefore,  no  w^ay  left  but  to  allege  that  the  law  has  made  it 
a  duty  of  a  master  to  see  that  his  servants  do  not  injure  each  other  by 
their  carelessness.  There  is  no  statute  of  this  purport ;  and  therefore  the 
allegation  must  be  that  it  is  a  part  of  the  common  law.  But  the  common  law 
consists  of  the.  general  customs  of  the  people,  and  of  the  maxims  and  prin- 
ciples on  which  they  act ;  and  it  is  conclusive  against  the  rule  contended 
for  that  it  has  never  been  found  among  these,  and  is  not  deducible  from  them. 

But  the  duty  insisted  upon  is  substantially  one  of  protection,  which  can- 
not exist  without  implying  the  correlative  one  of  dependence  or  subjection. 


af¥d.  5  N.  Y.  492  (1851)  ;  Harrison  v.  Central  R.  R.,  31  N.  J.  L.  293  (1865)  ; 
and  see  also  cases  cited,  accord,  from  the  great  majority  of  American  juris- 
dictions in  Note  14.    Sherman  and  Rcdfield  on  Negligence,  5th  Ed.,  §  180. 

The  Roman  law  recognized  no  distinction  between  a  servant  and  a  stran- 
ger in  respect  to  a  master's  liability  for  the  misconduct  of  other  servants 
employed  by  him.  His  liability  to  either,  save  in  certain  exceptional  cases, 
existed  only  when  he  was  personally  at  fault  in  selecting  (elegendo)  or 
supervising  (custodiendo)  the  delinquent  servant.  See  A.  Pearse  Higgins, 
Esq.,  9  Judicial  Rev.,  p.  256,  et  seq.  So  in  those  countries,  whose  jurisprudence 
is  founded  in  whole  or  in  part  upon  the  Roman  law,  and  which  have  not 
fallen  under  the  dominance  or  influence  of  a  common  law  jurisdiction,  the 
master's  liability — w'hether  the  restricted  liability  of  the  Roman  law  or  a  gen- 
eral liability  to  answer  for  all  the  injurious  consequences  of  the  acts  of  those 
employed  in  his  affairs  (as  in  France,  imder  Act  1384  of  the  Code  Civile), 
or  special  liabilities  of  this  latter  nature  laid  in  those  who  operate  railways 
or  carry  on  certain  other  classes  of  dangerous  business  (as  in  Germany,  see  9 
Jur.  Rev.,  pp.  260,  et  seq.)  ;  to  a  servant  is  precisely  the  same,  neither  less  nor 
more,  than  that  to  a  patron  or  stranger. 

France.  Dalloz,  1841.  Partie  i,  271 — it  is  said  by  H.  D.  Bateson.  Esq.. 
5.  L.  Q.  Rev.,  p.  184,  that  the  law  of  Italy  and  Switzerland  follows  that  of 
i'Vance,  as  does  that  of  Quebec,  Asbestos  Co.  v.  Durand,  30  Can.  S.  C.  285 
(1900);  Queen  v.  Grenier,  ibid  12;  R.  R.  v.  McDuffey,  79  Fed.  934  (1895); 
Mexico  Cent.  R.  R.  v.  Spraguc,  114  Fed.  544  (1902)  ;  Germany  and  Austria, 
see  9  Judicial  Rev.,  pp.  249,  395. 

The  common  law  doctrine  of  fellow  service  was  in  Scotland,  "not  so 
much  adopted  from  England  as  thrust  upon  the  Scottish  courts  by  decisions 
of  the  House  of  Lords,"  Pollock  Essays  on  Jurisprudence,  p.  115;  Di.ron  v. 
Rankin,  14  Dunlop  420  (1852),  and  Bartonshill  Co.  v.  Maguire,  3  Macq.  266 
(1858),  and  was  in  Louisiana  adopted  from  the  neighboring  common  law 
jurisdictions,  see  Towfis  v.  R.  R.,  S7  La.  Amt.  630  (1885). 


Al'.RAHAM  v.  RKVXOLDS.  15 

The  relations  of  husband  and  wife,  parent  and  child,  are  in  la\v  relations 
of  protection  and  dependence  ;  and  there  are  those  which  are  so  in  fact,  as 
where  a  weak-minded  person  submits  himself  to  the  direction  of  another; 
and  here  the  law  interferes  to  protect  against  an  undue  exercise  of  influence 
and  power. 

There  is  no  relation  of  protection  and  dependence  between  master  and 
servant,  or  of  confidence  in  the  institution  of  the  relation  :  we  speak  not  of 
master  and  apprentice.  The  servant  is  no  I^oman  client  or  feudal  villein,  with 
a  lord  to  protect  him.  Both  are  equal  before  the  law,  and  considered  equally 
competent  to  take  care  of  themselves,  and  very  often  the  servant  is  the  more 
intelligent  of  the  two. 

The  argument  that  the  law  implies  a  warranty  that  one  servant  shall 
not  be  injured  by  the  carelessness  of  another,  is  only  another  way  of  stating 
the  proposition  that  the  law  imposes  the  duty  of  protection  and  it  must 
be  set  aside  by  the  same  answer. 

*And  what  would  be  the  value  of  such  a  rule?  If  it  exists  at  all,  it  must 
grow  out  of  the  relation  and  affect  all  persons  standing  in  it ;  and  this  would 
change  all  our  ideas  concerning  the  relation  of  master  and  servant.  Every 
man  must  have  his  own  business,  whether  as  master  or  as  servant,  and  there 
is  no  business  without  its  risks.  Where  many  servants  are  employed  in  the 
same  business,  the  liability  to  injury  from  the  carelessness  of  their  fellows 
is  but  an  ordinary  risk,  against  which  the  law  furnishes  no  protection  but 
by  an  action  against  the  actual  wrongdoer.  It  would  violate  a  law  of  nature  if 
it  should  provide  an  immunity  to  any  one  against  the  ordinary  dangers  of  his 
business,  and  it  would  be  treating  him  as  incapable  of  taking  care  of  himself. 

If  we  declare  that  workmen  are  warranted  against  such  carelessness, 
then  the  law  places  all  careless  men,  which  means  all  badly  educated  or 
badly  trained  men,  and  it  places  even  those  who  have  not  acquired  a  reputation 
for  care,  under  the  ban  of  at  least  a  partial  exclusion  from  all  work.  And 
this  is  the  ordinary  result  of  all  undue  attempts  to  protect  by  law  one  class 
of  citizens  against  another.  It  is  done  at  a  practical  sacrifice  of  liberty  on 
the  part  of  those  intended  to  be  protected,  and  to  the  embarrassment  of  the 
common  business  of  life,  by  imposing  upon  the  people  a  rule  of  a  new  and 
unusual  character  which  may  require  half  a  century  to  become  fitted  like  a 
custom,  and  adapted  to  the  customs  already  existing  which  it  does  not  have 
the  effect  of  annulling. 


Pollock,  C.  B.,  in  Abraham  v.  Re\iiolds,  5  H.  &  N.  143,  p. 
147: 

The  case  of  master  and  servant  is  only  one  of  a  class. 
The  question  has  hitherto  arisen  in  cases  between  master  and 
servant,  but  it  appears  to  me  that  the  learning  on  the  subject 
has  not  been  exhausted.  When  two  persons  serve  the  same 
master,  one  cannot  sue  the  master  for  the  negligence  of  his  fellow 
servant.  The  rule  applies  to  every  establishment.  No  member 
of  an  establishment  can  maintain  an  action  against  the  inaster 
for  an  injury  done  to  him  by  another  member  of  that  estab- 
lishment, in  respect  to  which,  if  he  had  been  a  stranger,  he 
might  have  had  a  right  of  action.  A  friend  of  the  servant,  a 
son,  a  relation,  living  in  the  same  house,  not  in  the  character 
of  a  servant,  but  as  a  member  of  the  same  family,  are  probably 
in  the  satne  position,  and  such  persons  cannot  maintain  actions 
any  more  than  a  servant  could.  Rut  that  is  where  they  form 
one  family,  in  one  establishment,  for  one  common  purpose.* 


*  So  he  says,  p.  147 :  "A  guest  is  in  the  same  position  as  a  servant."  So 
Bramwell,  L.  J.,  Szvainsou  v.  Ry.,  L.  R.  3  Ex.  Div.  341  (1878),  p.  348.  says  that, 
the  rule  that  a  person  injured  by  the  negligence  of  a  fellow  servant  cannot 
maintain  an  action  against  the  master  "extends  to  guests  who  cannot  sue 
the  master  of  the  house  for  an  injury  done  by  his  servant." 


l6  APPENDIX. 


EASON  V.  S.  &  E.  T.  RAILWAY  CO. 

Supreme  Court  of  Texas,  1886.     65  Texas,  ^77- 

Willie,  Chief  Justice:  The  demurrer  to  the  petition  was 
sustained,  it  seems,  on  the  ground  that  the  appellant,  in  perform- 
ing the  duty  of  a  brakeman  at  the  time  he  was  injured,  assumed 
all  the  risks  incident  to  the  position,  and,  hence,  could  not  recover 
for  an  injury  caused  by  the  negligence  of  a  fellow  servant.  This 
is  the  law  when  the  injured  party  is  a  mere  volunteer  in  the  per- 
formance of  the  service.  For  instance,  where  one  having  no 
interest  in  the  loading  or  unloading  of  a  car,  or  in  the  carriage 
or  delivery  of  passengers  or  freight,  volunteers  to  assist  in  ref- 
erence to  such  matters,  and,  whilst  thus  engaged,  is  injured,  he 
stands  in  the  same  position  as  a  regular  employe  engaged  in 
the  particular  service,  so  far  as  any  right  of  recovery  for  his 
injuries  is  concerned.  Mayton  v.  T.  &  P.  Ry.  Co.,  63  Tex.  yy ; 
New  Orleans,  &c.,  Ry.  Co.  v.  Harrison,  48  Miss.  112;  Flozver  v. 
Penn.  Ry.  Co.,  69  Penn.  St.  210.^ 

But  the  case  is  different  when  the  injured  party  was  acting  at 
the  time  in  furtherance  of  his  own  or  his  master's  business.  2 
Thompson  on  Neg.,  1045. 

Thus,  when  the  owner  of  freight  transported  by  a  railway 
company  was  allowed  to  assist  in  its  delivery,  and,  in  so  doing,  was 
injured  through  the  carelessness  of  the  company's  servant,  it  was 
held  that  he  could  recover  damages  of  the  company.  Holmes  v. 
N.  E.  Ry.  Co.,  L.  R.  4  Exch.  254;  Wright  v.  London,  &c.,  Ry.  Co.. 
I  Q.  B.  biv.  252. 

~  So,  when  a  passenger  on  a  street  car  voluntarily  assisted  the 
driver  in  backing  the  car  upon  a  switch,  so  that  another  car  com- 
ing in  an  opposite  direction  could  pass,  and  was  injured  through 
the  negligence  of  the  driver  of  the  latter  car,  he  was  allowed 
to  recover  damages  of  the  street  car  company.  Mclntyre  Ry. 
Co.  V.  Bolton,  21  A.  and  E.  R.  Cases,  501.^ 

The  principle  upon  which  a  recovery  is  allowed  is  this: 
The  injured  person  is  not  a  volunteer,  but  engaged  at  the  re- 
quest or  with  the  permission  of  the  railway's  agents  in  a  trans- 
action of  interest  as  well  to  himself  or  his  master  as  to  the  rail- 
road company,  and  this  entitles  him  to  the  same  protection  against 
the   neo-ligence   of   the   company's   servants   as    if   he   were   at   the 


\iccord:  Dcgg  v.  Midland  Ry.,  i  H.  &.  N.  773  (1857),. "It  seems  impossi- 
ble to  suppose  that  the  deceased,  by  volunteering  his  services,  can  have  any 
greater  rights  or  impose  any  greater  duty  on  the  defendants  than  would  have 
existed  had  he  been  a  hired  servant."  Bramwell,  B..  p.  789;  Potter  v.  Faulkner, 
I  B  &  S  800  (1861)  ;  Wischam  v.  Rickards.  136  Pa.  109  (1890)  ;  Art2  v.  Lit, 
198  Pa  519  (1901)  ;  Barstow  v.  R.  R.,  143  Mass.  535  (1887)  ;  Johnson  v.  Ash- 
land Water  Co.,  71  Wis.  553  (1888),  per  Taylor,  J.,  p.  556;  and  this  applies 
to  a  servant  who  at  the  request  of  another  servant  assists  such  other  in  work 
which  he  himself  is  not  employed  to  perform.  Oshorn  v.  Knox  &  Lincoln, 
68  Me.  49  (1877),  master  of  a  ferry  boat  assisting,  at  conductor's"  request,  a 
train  crew  in  uncoupling  cars. 

^43  Ohio  St.  224  (1885),  decided  on  the  ground  that  the  passenger  "was 
interested  in  having  the  car  driven  to  its  destination." 


EASON  r.  S.  &   E.  T.  RAILWAY  CO.  1/ 

time  attending  to  his  own  private  affairs.  Though,  performing 
a  service  beneficial  to  both,  he  is  doing  so  in  his  own  behalf,  and 
not  as  a  servant  of  the  company.  Their  request  or  acquiescence 
gives  him  the  right  to  perform  the  service;  the  fact  that  he  acts 
in  his  own  behalf,  however  beneficial  his  labor  may  be  to  the 
company,  gives  him  the  right  to  be  protected  against  the  negli- 
gence of  the  company's  servants.  The  act  done  by  him  should 
be  a  prudent  and  reasonable  one,  and  "not  a  wrongful  inter- 
meddling with  business  in  which  he  had  no  concern."  Mclntyre  v. 
Bolton,  supra. 

Does  the  appellant's  position  bring  his  case  within  this  prin- 
ciple? He  was  not  an  employe  of  the  railway  company,  but  of 
the  owners  of  the  mill  who  shipped  lumber  by  the  company's  cars. 
His  business  was  to  load  lumber  upon  the  cars  for  his  employers. 
The  car  which  he  attempted  to  couple  to  the  train  was  placed 
in  the  situation  it  occupied  for  the  purpose  of  being  loaded  with 
lumber  by  the  servants  of  Carlisle  &  Snelling,  who  owned  the 
mill.  It  was  so  located  that  it  could  not  be  conveniently  loaded, 
and  to  have  it  hauled  upon  the  track  was  a  matter  of  interest  to 
the  plaintiff's  employers. 

This  fact  was  called  to  the  attention  of  the  conductor  by 
the  appellant  himself,  acting  in  behalf  of  his  employers,  Carlisle 
&  Snelling.  The  conductor  consented  to  his  request,  but,  being 
short  of  brakemen,  asked  the  appellant  to  couple  the  car  to  the 
one  immediately  in  front  of  it,  which  the  latter  consented  to  do; 
and,  in  its  performance,  received  the  injury  complained  of, 
through  the  negligence  of  the  engineer.  The  service  the  appel- 
lant was  performing  at  the  time  was  in  furtherance  of  the  mas- 
ter's interest  in  having  the  car  placed  ►where  it  could  be  loaded 
more  conveniently,  and  hence,  expedited  in  starting  for  the  desti- 
nation of  the  lumber.'^  He  was  still  acting  in  the  capacity  of  a 
servant  for  Carlisle  &  Snelling;  was  doing  so  at  the  request, 
and,  of  course,  with  the  permission  of  the  defendant  company. 
The  act  he  was  performing  was  not  only  a  prudent  and  reason- 
able one,  but  absolutely  demanded  by  the  circumstances.  The 
coupling  was  necessary  to  the  removal  of  the  car  to  a  proper 
position,  and  the  company  had  not  sufficient  brakemen  to  perform 
the  duty  at  the  time.  It  is  difficult  to  see  how  a  case  could  be 
brought  more  completely  within  the  principles  we  have  an- 
nounced. It  is  a  stronger  case  in  behalf  of  the  injured  party  than 
any  of  those  we  have  cited ;  and  the  plaintiff  was  as  much  enti- 
tled to  recover,  if  the  allegations  of  his  petition  were  borne  out 
by  the  facts,  as  if  he  had  been  injured  by  the  negligence  of  the 
engineer  when  loading  the  car  with  lumber  for  his  employers. 

We  think  the  court  erred  in  sustaining  the  demurrer  to  the 
petition,  and  for  this  error  the  judgment  must  be  reversed  and 
the  cause  remanded. 

Reversed  and  remanded.^ 


*  Accord:  Abraham  v.  Reynolds,  5  H.  &  N.  143  (i860),  with  which  com- 
pare Potter  V.  Faulkner,  supra,  n.  i ;  Louisville,  etc.,  R.  R.  v.  Ward,  98  Tenn. 


APPEWniX. 


BAIRD  v.  PETTIT. 
Supreme  Court  of  Pennsylvania,  1872.     70  Pa.  477. 

Williams,  J. :  The  plaintiff  below  was  employed  as  drafts- 
man in  the  works  carried  on  by  the  defendant  for  the  manufac- 
ture of  locomotive  engines.  On  the  evening  of  the  15th  of  No- 
vember, 1865,  after  the  hands  had  quit  work,  he  left  the  building 
where  he  was  employed,  and  was  on  his  way  heme,  when  he  fell 
over  a  pile  of  dirt  and  rubbish  on  the  sidewalk  in  front  of  the 
premises,  a  few  feet  from  the  steps  of  the  building,  which  had 
been  thrown  out  in  deepening  a  cellar,  and  left  on  the  pavement, 
and  in  falling  received  the  injury  for  which  this  action  was 
brought.  The  work  of  excavating  the  cellar  was  done  under 
the  superintendence  of  the  carpenter  employed  to  do  the  job- 
bing work  about  the  premises,  but  the  men  who  did  the  excava- 
tion, as  the  jury  have  found,  were  subject  to  the  defendant's 
direction  and  control. 

But  there  is  another  reason^  for  holding  that  the  rule 
which  exempts  a  master  from  liability  for  an  injury  occasioned 
by  the  negligence  of  a  servant  does  not  apply  in  this  case.     The 


123  (1897)  ;  Welch  v.  Me.  Cent.  R.  R.,  87  Me.  552  (1894),  plaintiff  injured, 
while  assisting  the  crew  of  a  gravel  train,  at  their  request,  to  unload  gravel 
which  the  defendant  was  delivering  to  his  employer;  and  compare  Wischam 
V.  Richards,  136  Pa.  109  (1890),  in  which,  upon  facts  substantially  similar  to 
those  in  the  principal  case,  it  was  held  that,  "the  plaintiff's  participation  was 
not  that  an  owner  receiving  his  own  goods,  but  was  that  of  a  servant  assist- 
ing the  servants  of  the  defendants,"  per  Green,  J.,  p.  128;  Standard  Oil  Co.  v. 
Anderson,  212  U.  S.  215  (1909)-  ,  ,  .       r 

So,  where  one  railroad  has  the  right  to  use  the  tracks  and  yards  of  an- 
other, the  servants  of  the  two  companies,  engaged  in  furthering  the  business  of 
their  respective  employers,  are  not  fellow  servants,  Northern  Pacific  R.  R.  v. 
Craft,  69  Fed.  125  (1895)  ;  Cleveland,  etc.,  R.  R.  v.  Kernochan,  55  Ohio  St.  306 
(1896)  ;car  inspectors  employed  by  one  company,  injured  by  negligent  opera- 
tion of  trains  by  employees  of  another  company  having  right  to  use  same  tracks  ; 
P  W.  &  B.  R.  R.  v.  State,  to  use  of  Bilger,  58  Aid.  372  (1882)  ;  Swanson  v.  Ry. 
Co.,  L.  R.  3  Ex.  Div.  341  (1878)  ;  and  this  is  so,  although  both  companies 
must  run  their  trains  according  to  the  rules  and  subject  to  the  special  orders 
of  the  company  owning  the  track.  Phillips  v.  R.  R.,  64  Wis.  475  (1885),  or 
where  one  company  contracts  to  run  one  train  daily  over  the  line  owned  by 
another  company,  Ziegler  v.  R.  R.,  52  Conn.  543  (1885).  In  consequence  of 
a  similar  decision  in  the  case  of  Catawissa  R.  R.  v.  Armstrong,  49  Pa.  186 
(1868),  an  act  of  legislature  was  passed  April  4.  1868,  P.  L.  1868,  58,  §l, 
providing  that  those  killed  or  injured  while  "lawfully  engaged  or  employed 
on  or  about  the  rails,  works,  depots  or  premises  of  a  railroad  company  or  in 
or  about  any  train  or  car  therein  or  thereon"  and  not  employees  of  such 
company,  shall  have  only  such  right  of  action  as  would  have  existed  had  they 
been  employees  of  such  "company.  This  act  was  repealed  June  10.  1907,  P.  L. 
1907,  p.  522.  The  decisions  under  it  will  be  found  collected  in  P.  &  L.  Dig. 
of  Decisions,  Vol.  13,  p.  21,998;  the  most  important  being  Spezak  v.  R.  R.,  152 
Pa.  281  (1893),  and  Vannatta  v.  R.  R.,  154  Pa-  262  (1893)- 

'  A  part  of  the  opinion  is  omitted,  holding  that  the  plaintiflf  did  not  assume 
the  risk  of  the  negligence  of  the  carpenters  who  were  engaged  in  deepening 
the  cellars,  since  he  had  no  reason  to  anticipate  that  accepting  the  position  of 
draughtsman  would  probablv  expose  him  to  the  risk  of  injury  from  the  neg- 
ligence of  such  workmen,  "though  employed  and  paid  by  the  same  rnast.^ 
See  The  Petrel,  post,  p.  374.  and  notes. 


r.AiRi)  V.  rETTiT.  19 

relation  of  master  and  servant  did  not  exist  between  the  parties 
wijen  the  plaintiff  received  the  injury.  He  was  not  then  in  the 
service  of  the  defendant;  he  had  cjuit  work  and  was  on  his  way 
home.  He  was  no  longer  subject  to  the  defendant's  control,  or 
bound  to  obey  his  orders.  As  soon  as  he  left  the  building  he  was 
his  own  master.  He  was  then  no  more  in  the  defendant's  serv- 
ice than  any  other  citizen  passing  along  the  street,  and  he  was 
entitled  to  the  same  rights  and  immunities,  li  the  relation  of 
master  and  servant  did  not  cease  when  he  left  the  building, 
after  his  day's  work  was  done,  when  did  it?  It  cannot  be  pre- 
tended that  it  followed  the  plaintiff  home  and  remained  with 
him  while  there.  And  if  not,  it  must  have  ceased  when  he  left 
the  building,  and  he  had  the  same  right  to  an  unobstructed  side- 
walk in  front  of  the  defendant's  premises  as  any  other  citizen; 
and,  if  injured  by  a  dangerous  obstruction,  the  same  remedy  for 
an  injury.  It  will  scarcely  be  contended  that  if,  while  on  his 
way  home,  he  had  been  run  down  by  the  defendant's  carriage, 
through  the  carelessness  of  the  driver,  the  defendant  would  not 
have  been  responsible  for  the  injury,  because  the  negligence  of 
the  driver  was  one  of  the  risks  which  the  plaintiff  assumed  when 
he  entered  into  his  service.  But  in  principle  what  difference  is 
there  between  the  two  cases?  Why  is  not  the  driver  of  defend- 
ant's carriage  as  much  the  plaintiff"'s  fellow  servant  as  the  digger 
of  the  cellar?  And  why  should  the  plaintiff  be  required  to  fore- 
see and  take  into  account  the  risk  arising  from  the  negligence  of 
the  one  and  not  of  the  other?  There  is  no  real  difference  be- 
tween the  cases,  and  neither  case  is  within  the  rule  which  ex- 
empts masters  from  liability  for  injuries  occasioned  by  the  negli- 
gence of  their  servants.  It  is  clear  that  this  case  is  not  within 
the  rule,  not  only  for  ^le  reason  that  the  injury  did  not  happen 
to  the  plaintiff  while  he  was  engaged  in  the  defendant's  service, 
but  because  it  was  not  occasioned  by  any  of  the  risks  he  assumed 
when  he  entered  into  his  employment.  The  risk  which  occasioned 
the  injury  was  not  one  incident  to  the  business,  and  to  which  only 
the  workmen  engaged  in  carrying  it  on  were  exposed ;  but  one  un- 
connected with  the  business,  and  to  which  all  citizens  having 
occasion  to  pass  along  the  street  were  as  much  exposed  as  the 
plaintiff  and  his  fellow-workmen. 

It  follows  from  what  we  have  said  that  there  was  no  error 
in  the  instructions  given  by  the  learned  judge  of  the  District 
Court  to  the  jury,  or  in  his  refusal  to  affirm  the  points  sub- 
mitted by  the  defendant. - 

Judgment  affirmed.^ 

'The  court  had  in  effect  charged  that  if  the  persons  engaged  in  making 
the  excavations  were  not  independent  contractors,  but  were  doing  the  work 
under  the  control  of  the  defendants  and  as  their  servants,  the  defendants 
were  as  much  liable  for  their  negligence  to  one  of  their  own  servants  as  to 
anyone  else,  and  had  refused  to  charge  that  though  engaged  m  different 
departments  of  the  defendants'  business,  the  negligent  workman,  if  working 
under  the  defendants'  superintendence  and  control,  and  the  plaintiff  were 
fellow  servants. 

'Accord:  Savannah,  etc.,  R.  R.  v.  Flanagan,  82  Ga.  579  (1889)  ;  Fletcher 


20  APPRXniX. 

V.  R.  R.,  i68  U.  S.  135  (1897),  railroad  employees  injured  by  careless  opera- 
tion of  their  employer's  trains  upon  tracks  adjacent  to  or  upon  highways  on 
which  they  were  walking  home. 

Whether  an  employee  while  upon  his  master's  premises,  but  not  actually 
at  work  for  him,  is  or  is  not  to  be  regarded  as  in  the  master's  service  depends 
upon  whether  that  part  of  the  premises,  on  which  he  is,  is  or  is  not  a  part 
over  which  he  must  pass  to  reach  the  point  where  his  actual  work  is  to  be 
done.  Ewalt  v.  R.  R.,  70  Wis.  420  (1880)  ;  Gaiie  v.  Norton  Hill  Colliery  Co., 
L.  R.  1909,  2  K.  B.  539  (employee's  injury  held  an  accident  arising  out  of 
and  in  the  course  of  his  employment  within  the  meaning  of  the  Workmen's 
Compensation  Act,  8  Edw.  7,  §  58,  1906),  both  cases  where  workmen  were 
injured  in  crossing  their  employer's  tracks  on  their  way  to  or  from  their 
work;  Kappe  v.  Brown  Shoe  Co.,  116  Mo.  App.  154  (190S).  servant  chose  to 
ride  to  workroom  in  freight  elevator  in  preference  to  walking  up  the  stairs ; 
but  see  Northwest  Packet  Co.  v.  McCue,  17  Wall.  508  (1873),  and  compare 
Baltimore,  etc.,  R.  R.  v.  State,  to  use  of  Trainor,  33  Md.  579  (1870),  and  Siillifan 
v.  R.  R.,  73  Conn.  203  (1900),  where  the  servant,  injured  while  using  his  em- 
ployer's right  of  way  as  a  highway  after  quitting  his  place  of  work,  was  held 
no  longer  in  the  latter's  service. 

A  mere  temporary  cessation  of  labor,  such  as  a  dinner  hour,  does  not,  if 
spent  on  the  premises,  interrupt  the  service,  Boyle  v.  Columbian  Mills  Co.,  182 
Mass.  93  (1902)  ;  but  see  Orman  v.  Salvo,  117  Fed.  22,Z  (C.  C.  A.,  8th  Circ, 
I902\  where  it  was  held  that  an  employee  who  was  engaged  to  do  construc- 
tion work  in  a  desolate  country  which  required  him  to  keep  in  quarters  pro- 
vided by  the  master  adjacent  to  his  place  of  work,  was  not  in  the  master's 
service  while  asleep  in  such  quarters;  but  compare  with  this  Shoemaker  v.  R. 
R.,  46  Minn.  39  (1891). 

Whether  a  railroad  employee  is  considered  to  be  as  in  the  company's 
service  while  riding  in  its  trains  to  or  from  the  place  where  his  actual  work 
for  it  is  to  be  performed  depends  on  the  facts  of  the  particular  case.  If 
the  journey  is  one  which  the  nature  of  his  employment  or  his  contract  with 
the  company  requires  him  to  make,  he  is  regarded  as  being,  during  it,  in  its 
service ;  as  where  he  is  employed  as  one  of  the  crew  of  a  construction,  repair 
or  wrecking  \.rz\r\,—GiUshannon  v.  R.  R.,  10  Cush.  (Mass.)  228  (1858); 
Timney  v.  Ry.  Co.,  L.  R.  i  C.  P.  289  (1866)  ;  Cremins  v.  Guest,  ct  al.  L.  R. 
1908,  I  K.  B.  469;  St.  Louis,  etc.,  R.  R.  v.  Harmon,  85  Ark.  503  (1908)— or 
where  the  servant  has  no  fixed  place  of  work,  being  employed  to  travel  at 
the  company's  orders  to  any  point  where  his  services  may  be  required — 
Louisville,  etc.,  R.  R.  v.  Stuber,  108  Fed.  934  (C.  C.  A.  6th,  1901),  employee 
in  charge  of  water  supply;  Travellers'  Ins.  Co.  v.  Austin,  116  Ga.  264  (1906), 
paymaster  going  from  point  to  point  to  pay  the  company's  employees;  Shan- 
non V.  R.  R.,  27  R.  I.  475  (1906),  switch  cleaner;  St.  Clair  v.  R.  R.,  122  Mo. 
App.  519  (1906)  ;  Manvile  v.  R.  R.,  n  Ohio  St.  417  (i860)  ;  contra,  Hams  v. 
Traction  Co.,  100  Pac.  938  (Wash.,  March  27,  1909).  foreman  in  charge  of 
repair  work  traveling  to  a  place  where  his  work  called  him  upon  a  pass  en- 
titling him  and  his  gang  to  transportation — or  where  a  special  train  is  pro- 
vided to  take  the  workmen  to  their  place  of  labor,  upon  which  they  are  re- 
quired by  their  contract  to  travel.  Vick  v.  R.  R.,  95  N.  Y.  267  (1884)  ; 
Killduff  v.  R.  R.,  195  Mass.  307  (1907). 

But  if  the  servant  as  part  of  his  compensation  receives  the  right  to  free 
transportation  available  either  for  any  purpose  [Doyle  v.  R.  R..  162  IMass. 
66  (1894)  :  Dickinson  v.  Ry.,  177  Mass.  365  (1901).  a  general  right  of  free 
transportation  to  all  employees  wherever  bound;  Enos  v.  Ry.,  28  R.  I.  291 
(1908),  a  limited  number  of  free  tickets],  or  only  for  carriage  to  and  from  work 
[McNulty  V.  R.  R.,  182  Pa.  479  (1897)]  the  servant  is  regarded  as  a  passenger. 
So,  too.  It  is  generally  held  that  a  servant  to  whom  without  any  prior  agree- 
ment free  transportation  to  or  from  work  is,  generally  or  on  some  particular 
occasion,  given  as  a  favor  and  not  as  of  right  is  carried  as  a  gratuitous  pas- 
senger and  not  as  a  servant.  Birmingham,  etc.,  Ca.  v.  Sawyer,  19  L.  R.  A. 
N.  S.  717  (Ala.,  igog),  and  see  cases  cited  in  note  thereto.  Goehring  v.  Trac- 
tion Co.,  222  Pa.  600  (1909)  ;  Chattanooga  R.  R.  v.  Venable.  105  Tenn.  460 
(1900)  ;  Whitney  v.  R.  R.,  102  Fed.  (C.  C.  A.  ist  Cir.,  1900)  850;  Peterson  v. 
Traction  Co.,  23  Wash.  615  (1900)  ;  Louisville,  etc.,  R.  R.  v.  Weaver,  22  Ky. 
L.  R.  30  (1900);  contra.  lonnone  v.  R.  R.,  21  R.  I.  452  (1899);  Russell  v. 
R.  R..  17  N.  Y.  134  (1858)  ;  scmble. 


JOHNSON  V.   LINDSAY  &  CO.  21 


JOHNSON  V.  LINDSAY  &  CO. 
In  ihe  House  of  Lords,  1891.    L.  R.  1891.    Appeal  Cases,  371. 

Messrs.  Higgs  &  Hill,  the  appellant's  employers,  were  con- 
tractors for  the  construction  of  a  block  of  buildings  in  accord- 
ance with  plans  and  specifications  prepared  by  the  owner's  archi- 
tect, which  required  that  concrete  floors  for  laundry  purposes, 
on  the  Lindsay  system,  should  be  put  in.  The  details  of  these 
floors  were  entered  in  the  specifications  under  the  heading, 
"Power  for  other  tradesmen  to  perform  works,"  and  there  was 
a  provision  that  in  order  to  carry  out  such  works,  the  contractors 
were  to  allow  free  access  to  the  premises,  etc.,  to  such  trades- 
men. The  contractors  were  also  to  provide  £215  to  be  paid 
tq  Lindsay  &  Co.,  or  any  other  firm  approved  by  the  architect,  for 
such  floors,  and  were  to  allow  Lindsay  &  Co.  the  use  of  their 
scaffolding  and  to  give  any  necessary  assistance  and  were  to  work 
with  them  as  might  be  necessary  for  the  due  dispatch  of  their 
work.  Arrangements  had  been  practically  completed  between 
the  architect  and  Lindsay  &  Co.  before  the  contract  with  Higgs 
&  Hill  was  entered  into.  The  respondents  had  no  contract 
with  Higgs  &  Hill ;  and  they  came  under  no  obligation  either  to 
receive  directions  from  that  firm,  or  in  any  way  to  submit 
to  their  control.  The  evidence  does  not  show  or  even  sug- 
gest that,  in  point  of  fact,  Higgs  &  Hill  ever  attempted  to 
interfere  with  the  respondents'  work,  or  to  assume  control  over 
their  servants  who  were  employed  in  its  execution. 

It  is  not  disputed  that  the  appellant  was  engaged  and 
paid  by  Higgs  &  Hill,  or  that  the  workmen  through  whose  fault 
he  was  injured  were  e^jgaged  by,  and  received  their  wages  from, 
the  respondents.  At  the  time  when  he  was  injured,  the  ap- 
pellant was  clearing  away  rubbish  from  the  lower  story  of  the 
building,  in  the  course  of  his  duty,  as  the  servant  of  Higgs  & 
Hill,  who  had  undertaken  to  perform  that  operation.  The 
respondents'  servants  were  raising  buckets  of  concrete  to  the 
topmost  story,  for  the  purposes  of  their  contract  with  Mr.  Bur- 
den, by  means  of  a  pulley  and  tackle,  supplied  by  Higgs  & 
Hill,  as  required  by  the  specification,  when,  through  want  of 
due  care  on  the  part  of  the  respondents'  servants,  a  bucket  fell 
upon  and  injured  the  appellant. 

At  the  trial  before  Grantham.  J.,  the  jury  found  a  ver- 
dict for  the  plaintifif  for  £52  los..  and  judgment  was  entered 
accordingly.  The  Queen's  Bench  Division  (Pollock,  B.,  and 
Manisty,  J.)  ordered  the  verdict  and  judgment  to  be  set  aside 
and  judgment  to  be  entered  for  the  defendants  on  the  ground 
that  the  plaintiff  at  the  time  of  the  accident  was  engaged  in 
a  common  employment  with  the  servant  of  the  defendants  whose 
negligence  caused  the  injury  to  the  plaintiff,  and  that  the  de- 
fendants therefore  could  not  be  held  liable.  This  judgment  was 
affirmed  by  the  Court  of  Appeals  (Cotton  and  Lopes,  L.  JJ., 
Fry,  L.  J.,  dissenting  [23  Q.  B.  D.,  508] ). 


22  APPENDIX. 

Lord  Herschell  (after  stating  in  substance  the  facts  given 
above,  proceeded  thus)  : — 

The  only  other  facts  necessary  to  be  stated  are  that  there 
were,  as  far  as  appears,  no  communication  between  Higgs  & 
Hill  and  Lindsay  &  Co.  before  the  latter  commenced  their 
work,  and  that  it  was  the  architect  who  advised  them  that  the 
buildings  were  sufficiently  advanced  to  enable  them  to  com- 
mence the  work  for  which  they  had  given  him  an  estimate.  It 
should  be  added  that  the  payments  were  made  to  Lindsay  & 
Co.  through  Higgs  &  Hill,  and  that  at  the  time  when  the  acci- 
dent happened  the  appellant  was  not  engaged  about  the  work 
included  in  Lindsay  &  Co.'s  contract. 

Upon  this  state  of  facts  it  is,  I  think,  clear  that  the  appel- 
lant was  in  no  sense  the  servant  of  Lindsay  &  Co.  It  follows, 
therefore,  that  if  it  is  essential  to  the  defense  of  common  en^- 
ployment  that  the  person  suing  should  himself  be  the  servant 
of  the  master  by  whose  servant's  negligence  the  injury  has  been 
caused,  the  defense  cannot  be  sustained  in  the  present  case.  And 
upon  a  review  of  the  authorities,  I  am  unable  to  entertain  any 
doubt  that  this  is  essential.  Lord  Cranworth.  in  delivering  his 
opinion  in  this  House,  in  the  case  of  the  Bortoiishill  Coal  Com- 
pany V.  Reid  .(3  Macq.  266,  295),  thus  states  the  rule  established  in 
this  country:  "When  several  workmen  engage  to  serve  a  master  in  a 
common  work,  they  know,  or  ought  to  know,  the  risks  to  which  they 
are  exposing  themselves,  including  the  risks  of  carelessness,  against 
which  their  employer  cannot  secure  them,  and  they  must  be  supposed 
to  contract  with  reference  to  such  risks."  The  law  is  laid  down  in 
substantially  the  same  terms  by  Lord  Blackburn  in  Howells  v.  Lau- 
dore  Steel  Compau\  (L.  R.  lo'O.  B.  62),  and  by  Lord  Chief  Justice 
Erie  in  Hall  v.  Johnson  (3  H.  &  C.  at  p.  595).  who,  in  delivering  the 
judgment  of  the  Exchequer  Chamber,  said :  "The  case  falls  within 
the  principle  established,  not  only  in  this  country,  but  also  in  Scot- 
land, Ireland,  and  America,  that  a  servant  when  he  engages  to  serve 
a  master  undertakes  as  between  himself  and  his  master  to  run  all  the 
ordinary  risks  of  the  service,  including  negligence  on  the  part  of 
a  fellow-servant,  when  he  is  acting  in  the  discharge  of  his  duty  as 
a  servant  of  him  who  is  the  common  master  of  both."  And  in  the 
recent  case  of  Sii'ainson  v.  North  Eastern  Railway  Company 
(3  Ex.  D.  pp.  348,  349),  Lord  Bramwell  said:  "We  must  con- 
sider what  obligations  a  servant  takes  upon  himself ;  it  is  some- 
times said  that  he  contracts  to  take  upon  himself  the  risks  of  his 
service;  but  the  proposition  may  also  be  stated  as  follows,  namely, 
that  he  has  not  stipulated  for  a  right  of  action  against  his  master  if 
he  sustains  damage  from  the  negligence  of  a  fellow-servant.  The 
two  forms  of  the  proposition  seem  to  me  substantially  the  same ;  in 
either  case  it  is  necessary  to  prove  that  a  relation  has  been  estab- 
lished between  the  person  who  complains  and  the  master  of  the 
person  who  does  the  injury."  The  present  Master  of  the  Rolls  in  the 
same  case  thus  expressed  himself:  "I  think  that  the  authorities 
bear  out  the  proposition  laid  down  in  the  Exchequer  Division,  that 
in  order  to  give  rise  to  the  exemption  there  must  be  a  common 


joiiNSOX  r.  LixnsAV  &  co.  23 

employment  and  a  ':-ommon  master.  It  is  not  necessan'  that 
there  should  be  a  common  service  for  a  definite  time  or  at  fixed 
wages,  for  the  exemption  exists  in  the  case  of  volunteers  and 
of  other  persons,  where  plainly  there  has  been  no  contract  for 
payment;  a  volunteer  puts  himself  under  the  control  of  another 
person,  and  in  respect  of  that  other  person  he  is  for  the  time  being 
in  the  position  of  a  servant." 

These  authorities  are  sufiicient  to  establish  the  proposition 
that  unless  the  person  sought  to  be  rendered  liable  for  the  negli- 
gence of  his  servant  can  show  that  the  person  so  seeking  to  make 
him  liable  was  himself  in  his  service,  the  defense  of  common 
employment  is  not  open  to  him.  Such  service  need  not,  of 
course,  be  permanent  or  for  any  defined  term.  The  general 
servant  of  A  may  for  a  time  or  on  a  particular  occasion  be  the 
servant  of  B,  and  a  pe'rson  who  is  not  under  any  paid  contract  of 
service  may  nevertheless  have  put  himself  under  the  control  of  an 
employer  to  act  in  the  capacity  of  servant,  so  as  to  be  regarded  as 
such.^  This,  as  has  been  pointed  out,  is  the  position  of  a  volunteer. 
But  it  is  obvious  that  if  the  exemption  results,  as  it  does  accord- 
ing to  the  authorities  I  have  cited,  from  the  injured  person 
having  undertaken,  as  between  himself  and  the  person  he  sues, 
to  bear  the  risks  of  his  fellow-servant's  negligence,  it  can  never 
be  applicable  when  there  is  no  relation  between  the  parties 
from  which  such  an  undertaking  can  be  implied.  There  are 
other  considerations  which  point  in  the  same  direction.  It  must 
be  remembered  that  whilst  a  servant  contracts  with  his  master 
to  bear  the  risks  of  the  negligence  of  his  fellow-servants,  there 
is,  as  has  been  more  than  once  laid  down,  a  corresponding  duty 
on  the  part  of  the  employer  to  take  due  'care  to  select  competent 
servants.  And  it  would*  be  most  unreasonable  to  hold  that  he 
is  exempt  from  liability  for  his  servants'  negligence  in  any 
case  where  he  is  not  under  this  obligation.  But  I  do  not  see 
how  such  an  obligation  can  arise  otherwise  than  from  some  con- 
tractual relation.  The  obligation  and  the  exemption  appear  to 
me  to  be  correlative  and  to  be  implied  from  the  relation  of  mas- 
ter and  servant  created  between  the  parties. 

In  the  first  place,  I  do  not  think  that  Lindsay  &  Co.  were 
sub-contractors  under  Iliggs  &  Hill;  I  think  they  had  an  in- 
dependent   contract    with    those    who    were    employing    Higgs    & 


'  "When  one  person  lends  his  servant  to  another  for  a  particular  employ- 
ment, the  servant  for  anything  done  in  that  particular  employment  must  be 
dealt  with  as  the  servant  of  the  man  to  whom  he  was  lent,  although  he 
remains  the  general  servant  of  him  who  lends  him."  Pollock.  C.  B.,  Rourke 
v.  White  Moss  Colliery  Co..  L.  R.  2  C.  P.  205  (1877),  P-  209. 

Accord-  Johnson  v.  Boston,  it8  Mass.  144  (1875);  Hasty  v.  Sears,  157 
Mass  123  (1892)  ;  Erven  v.  Lippincott,  47  N.  J.  L.  192  (1885)  :  so  in  Roe  v. 
Winston,  86  Minn.  77  (1902),  a  railroad  company  havmg  furnished  a  con- 
struction train  to  the  defendants,  contractors  employed  to  straighten  its  line, 
as  required  by  its  contract  with  them,  it  was  held  that  the  plaintiflf.a  brakeman 
on  the  train,  and  the  engineer,  by  whose  negligence  he  was  injured,  are 
servants  of  the  defendants  within  the  terms  of  §  8t6,  R.  b.  T«9f<.  making 
"persons",  etc.,  "operating"  railroads  as,  inter  aha,  "contractors  liable  to 
an  employee  injured  by  the  negligence  of  other  employees. 


24  APPENDIX, 

Hill.-  In  the  second  place,  even  if  they  are  to  be  regarded 
as  in  some  sense  sub-contractors  under  Higgs  &  Hill,  1  think 
it  is  impossible  to  say  that  the  servants  of  Higgs  &  'Hill 
were  the  servants  of  Lindsay  &  Co.,  or  that  they  had  put  them- 
selves under  the  control  of  Lindsay  &  Co.  to  act  as  their  serv- 
ants, or  were  in  any  way  acting  as  such  at  the  time  of  the 
accident.^ 

It  only  remains  for  me  to  notice  the  recent  Scotch  decision  in 
the  case  of  Woodhead  v.  Gartness  Mineral  Company  (Sc.  Sess. 
Cas.  4th  Series,  469),  which  was  naturally  much  relied  on 
by  the  respondents.  Lord  Justice  Lopes  stated  in  the  court 
below,  I  think  quite  correctly,  that  this  decision  carried  the 
principle  of  common  employment  much  further  than  was  warranted 
by  any  of  the  English  authorities.  And  it  appears  to  me  to 
be  a  development  of  the  doctrine  which  is  really  in  antagonism 
with  cases  which  have  been  decided  in  this  country.  It  elim- 
inates altogether  the  element  that  the  injured  man  and  the  man 
doing  the  injury  must  be  in  the  employ  of  a  common  master, 
and  treats  as  unimportant  that  which  I  consider  to  be  of  the 
essence  of  the  exemption,  that  is  to  say,  the  mutual  inidertak- 
ings  between  the  employer  and  employed  to  be  implied  from  the 
relationship  -of  master  and  servant  constituted  between  them. 

I  think  the  judgment  appealed  from  ought  to  be  reversed 
and  the  judgment  entered  for  the  plaintiff  restored,  and  I  so 
move  your  Lordships. 

Lord  Watson  :  I  do  not  think  it  necessary  to  discuss  the 
question  under  what  circumstances  the  servant  of  one  man 
ought  to  be  considered  the  servant  of  another;  I  can  well  con- 
ceive that  the  general  servant  of  A  might,  by  working  towards 
a  common  end  along  with  the  servants  of  B,  and  submitting  him- 
self to  the  control  and  orders  of  B,  become  pro  hac  vice  B's  serv- 
ant, in  such  sense  as  not  only  to  disable  him  from  recovering 
from  B  for  injuries  sustained  through  the  fault  of  B's  proper 
servants,  but  to  exclude  the  liability  of  A   for  injury  occasioned. 


''Accord:  Morgan  v.  Smith,  159  Mass.  570  (1893). 

^  So  no  fellow  service  between  servants  of  an  independent  contractor  and 
the  servants  of  him  who  emploj'S  such  contractor,  though  the  work  is  to  be 
done  on  the  latter's  premises  and  tends  to  bring  the  two  servants,  so  closely 
in  contact  with  one  another  that  the  safety  of  each  manifestly  depends  upon 
the  carefulness  of  the  other.  Young  v.  'V.  Y.  Central  R.  R.,  30  Barb.  (N.  Y.^ 
229  (1839),  servant  of  contractor  engaged  to  repair  a  railway  bridge  mjured 
by  the  failure  of  those  in  charge  of  a  train  to  give  notice  of  its  passing  {cf. 
Woodlev  V.  Rv.  Co.,  L.  R.  2  Ex.  Div.  [1877]  384);  Union  Pacific  R.  R.  v. 
Billcter^  2S  Neb.  422  (1889):  Louisville,  etc.,  R.  R.  v.  Conroy,  63  Miss.  562 
(1886)  ;  the  plaintiff,  in  the  employ  of  one  who  had  contracted  to  do  grading 
for  the  defendant  railroad  company  who  was  to  furnish  a  train  and  engineer, 
was  injured  by  the  latter's  negligent  driving  of  the  train;  Reagan  v.  Casey. 
160  Mass.  374  (1894)  :  the  plaintiff,  employed  by  the*  City  of  Boston  to  dig 
a  ditch,  was  injured  while  so  engaged,  by  the  negligence  of  a  tearnster  in  the 
emplovment  of  the  defendant  who  had  contracted  with  the  city  to  haul 
away  the  dirt.  Nor  is  the  servant  of  a  tenant  a  fellow  servant  of  those 
emploved  bv  the  landlord  to  operate  the  machinery  which  supplied  power  to 
the  tenants  of  the  building;  Poor  v.  Sears,  154  Mass.  539  (1891),  p.  550. 


JOHNSON  V.   LINDSAY  &  CO.  25 

1)\-  his  fault,  to  B's  own  workmen.  In  order  to  produce  that 
result  the  circumstances  must,  in  my  opinion,  be  such  as  to  show 
conclusively  that  the  servant  submitted  himself  to  the  control 
of  another  person  than  his  proper  master,  and  either  expressly 
or  impliedly  consented  to  accept  that  other  person  as  his  master, 
for  the  purposes  of  the  common  employment.*  To  my  mind, 
there  is  not,  in  this  case,  a  tittle  of  evidence  to  show  that  the 
respondents'  workmen  agreed  to  submit  or  were  in  point  of  fact 
subjected  to  the  control  either  of  Higgs  &  Co.,  or  of  Mr.  Burden, 
the  architect.  I  am,  therefore,  unable  to  ass«nt  to  the  assump- 
tion upon  which  the  judgment  of  the  Court  of  Appeals  proceeds. 

I  am  also  unable  to  assent  to  the  legal  doctrine  which  found 
favor  with  the  Divisional  Court,  and  was  pressed  upon  us  in 
the  argument  for  the  respondents.  I  do  not  agree  with  Baron 
Pollock,  that  the  rule'  which  exempts  a  master  from  liability  to 
his  servant  for  injuries  negligently  occasioned  by  a  fellow- 
servant  in  the  course  of  their  common  employment  rests  upon 
the  absence  of  an  implied  contract  by  the  master  to  recoup 
such  damage.  The  master's  responsibility  for  his  servant's  acts 
has  its  origin  in  the  maxim,  "Qui  facit  per  alium  facit  per  se," 
which  has  been  construed  as  inferring  his  liability  for  what  is  neg- 
ligently done  by  the  servant  acting  within  the  scope  of  his  em- 
ployment. The  immunity  extended  to  a  master  in  the  case  of 
injuries  caused  to  each  other  by  his  servants  whilst  they  are 
working  for  him  to  a  common  end  is  an  exception  from  the 
general  rule,  and  rests  upon  an  implied  undertaking  by  the  serv- 
ant to  bear  the  risks  arising  from  the  possible  negligence  of  a 
fellow-servant  who  has  been  selected  ^  with  due  care  by  his 
master. 

I  am  of  opinion,  \%ith  Lord  Justice  Fry,  that,  in  order  to 
raise  the  exemption,  there  must  not  only  be  common  employ- 
ment but  a  common  master;  and  that  the  respondents  are  liable, 
because,  in  this  case,  although  there  was  common  employment, 
there  was  no  common  master. 


*  Accord:  D.  L.  &  W.  R.  R.  v.  Hardy,  59  N.  J.  L.  35  (1896),  p.  38.  In 
Morgan  v.  Smith  (supra,  n.  3)  Lathrop,  J.,  says.  p.  573:  "These  reasons" 
[those  given  by  Shaw,  C.  J.,  in  Fanvell  v.  R.  R.]  "have  no  apphcation  unless 
the  servant  knew  that  he  ceases  to  be  under  the  control  of  the  master  who 
employs  him,  and  passes  under  the  control  of  a  new  master." 

Whether  the  servant  has  or  has  not  been  transferred  from  the  service 
of  his  general  employer,  who  pays  his  wages  and  to  whom  alone  the  servant 
stands  in  any  true  contractual  relation,  depends  upon  the  facts  of  the  pa^ 
ticular  case. 

The  test  is  whether  the  servant  has,  to  his  knowledge  [Morgan  v.  SinilJi.  159 
Mass.  570  (1893),  p.  573]  and  with  his  consent  [D.  L.  (S-  IV.  R.  R.  v.  Hardy.  59 
\'.  J.  Law  35  (1896"),  p.  38.  and  Lord  Watson  in  the  principal  case,  p.  373. /'o.v^l, 
lieen  placed  under  the  exclusive  direction  and  control  of  a  third  party  in  the 
carrying  out  of  such  third  party's  business.  "The  master  is  he  in  whose 
business  he  is  engaged  and  who  has  the  right  to  control  and  direct  his  con- 
duct," O'Brien,  J.,  IVyllie  v.  Palmer.  137  \.  Y.  254  (1893),  p.  257.  "This 
generally  depends  upon  the  nature  of  the  contract  or  arrangement  expressed 
or  implied"  [from  what  is  customary  under  like  circumstances,  see  as  to 
(juasi  public  service  trades  Murray  v.  Dwight  (1901).  161  N.  Y.  301]  "be- 
tween his  general  master  and  the  third  person"  (Holmes,  J.,  Driscoll  v.  Towle- 


26  APPENDIX. 


THE  PETREL. 

In  the  Probate,  Divorce  and  Admiralty  Division,  1893.  L.  R.  1893,  Probate  320. 

The  President  (Sir  Francis  H.  Jeune)  :  In  this  case  two 
(juestions  of  a  wholly  different  nature  arise.^ 

On  January  5.  1893,  the  "Petrel"  came  into  collision  with  the 
"Cormorant,"  and  the  "Cormorant"  was  sunk.  The  owners  of  both 
vessels  are  the  General  Steam  Navigation  Company.  It  is  admitted 
that  the  collision  was  caused  by  the  negligence  of  those  navigating 
the  "Petrel,"  and  it  is  proposed  to  pay  into  court  the  sum  for  which 
the  owners  of  the  "Petrel"  are  Hable.  The  first  question  is,  whether 
the  master,  officers,  and  crew  of  the  "Cormorant"  can  claim  against 
this  fund  in  respect  of  their  effects  lost  in  that  vessel.  It  is  said 
that  they  cannot,  by  reason  of  their  common  employment  with  the 
master,  officers,  and  crew  of  the  "Petrel". 

No  doubt  the  captain  and  crew  of  the  "Cormorant""  had  a  com- 
mon master  with  the  captain  and  crew  of  the  "Petrel",  but  were 
thev  in  common  employment  with  each  other? 


181  Mass.  414  [1902],  p.  416),  as  understood  and  carried  out  by  them  (ruion 
S.  S.  Co.  V.  Claridge,  L.  R.  1894,  A.  C.  185),  to  the  servant's  knowledge. 
Morgan  v.  Smith,  supra.  The  existence  or  non-existence  of  a  right  in  such 
third  person  to  discharge  the  servant  is  not  conclusive,  Roe  v.  JVinston, 
supra;  contra.  Burton  v.  R.  R..  61  Tex.  526  (1884)  ;  Gcrlach  v.  Edclmayer,  47 
N.  Y.  Superior,  292  (1881),  but  see  The  Slingsley.  120  Fed.  748  (1903), 
where  it  is  said  where  the  third  person  has  no  power  to  "remove  or  differ- 
ently employ  the  individual  whom  A"  (the  latter's  general  master)  has 
selected,  no  other  power  of  control  is  sufficient  to  establish  the  relation  pro 
hoc  vice  of  master  and  servant. 

There  is  a  difference  of  opinion  as  to  the  nature  of  the  third  person's  right 
to  control  and  direct  necessary  to  constitute  him  master  pro  hac  vice.  The 
mere  power  to  designate  what  particular  piece  of  work  is  to  be  done  or 
what  result  is  desired  is  clearly  not  enough.  DriscoU  v.  Towle,  supra;  but  in 
New  Jersey  and  Massachusetts  it  seems  that  the  right  to  control  the  time  and 
place  of  work  and  the  conditions  under  which  it  is  done  is  sufficient,  Ezven 
V.  Lippincott,  supra,  machinist,  sent  to  repair  machinery  in  a  mill,  injured  by 
the  carelessness  of  the  engineer  in  starting  the  machinery  while  he  was 
still  at  work;  Hasty  v.  Sears,  supra;  Delory  v.  Blodgett,  185  Mass.  126 
(1904)  ;  though  this  is  not  so  where  it  appears  that  the  general  master  actually 
does  control  the  details  of  the  means  adopted  to  accomplish  the  work.  Reagan 
v.  Casey.  160  Mass.  374  (1894),  or  where  the  retention  of  such  power  is 
implied  from  the  nature  of  the  work  to  be  done,  as  where  one  furnishes 
horses  and  a  driver  to  be  used  in  another's  business.  Delory  v.  Blodgett, 
supra;  or,  perhaps,  wherever  the  servant  is  entrusted  with  the  use  of  property 
belonging  to  the  general  master,  careful  use  and  custody  of  which  is  neces- 
sary for  its  preservation,  idem.  p.  129.  On  the  other  hand,  it  is  more  gen- 
erally held  that  he  only  is  the  mnster  who  has  the  power  not  merely  to  dictate 
the  time  and  place  at  which  and  the  conditions  under  which  the  work  is  to 
be  done,  but  to  control  the  manner  of  accomplishing  it  "in  all  its  details." 
Sherman  &  Redfield  on  Negligence.  §t6o.  cited  and  approved  in  Wyllie  v. 
Palmer,  supra:  Coggins  v.  R.  R.,  62  Ga.  685  (1879)  :  and  see  City  of  Erie  v. 
Caulkins,  85  Pa.  243  (1878).  per  Gordon.  J.,  p.  253.  What  is  decisive  is  "the 
power  to  control  the  work,  not  merely  as  to  its  character,  but  as  to  the  i^ar- 
ticular  means  used  to  accomplish  it." 

'That  part  of  the  opinion  dealing  with  the  second  question  C which  re- 
lated to  amount  of  tonnage  by  reference  to  which  the  measure  of  the  T^bility 
of  the  Petrel  was  to  be  determined)   is  omitted. 


THE   PF.TREI..  2/ 

It  is  remarkable  that  although  propositions  of  law  defining  com- 
mon employment  and  recognizing  its  limitations  have  more  than 
once  been  laid  down,  and  have  been  illustrated  by  instances  in 
which  common  employment  has  been  held  to  exist,  there  appears 
to  be  no  decided  case  in  the  English  Courts  (there  are  several  m 
the  Scotch  Courts)  in  which  upon  consideration  of  the  tests  of  it, 
common  employment  has  been  negatived.  The  general  principles 
of  the  law  of  common  employment  were  fully  laid  down  in  the 
first  case  on  the  subject,  Priestley  v.  Fozvler  (3  M.  &  W.  i),  in 
1837.  But  I  think  that  the  most  complete  exposition  of  what  con- 
stitutes common  employment  is  to  be  found  in  the  great  judgment 
of  Shaw,  C.  J.,  of  ^Massachusetts,  in  Fanvcll  v.  Boston  Railroad  Cor- 
poration (4  Metcalf,  49,  quoted  at  length  in  3  ]\Iacq.  H.  L.  C.  316). 
which,  no  doubt,  materially  influenced  the  House  of  Lords  in  the 
case  of  BartonshiU  Coal  Co.  v.  Rcid  (3  Macq.  H.  L.  C.  266).  in 
which,  reversing  the  decision  of  the  Court  of  Session,  their  Lord- 
ships held  that  a  miner  laboring  in  a  mine  was  in  common  employ- 
ment with  the  engine-driver  by  whom  the  cage  was  worked.  Two 
phases  of  Shaw,  C.  J.,  indicate  his  view  of  the  test  of  common  em- 
ployment. One  lays  down  that  he  who  engages  in  the  employment 
of  another  for  the  performance  of  specified  services  "takes  upon 
himself  the  natural  risks  and  perils  incident  to  the  performance  of 
such  services,"  and  the  other  refers  to  the  condition  of  the  safety  of 
each  servant  depending  much  on  the  care  and  skill  with  which  each 
other  shall  perform  his  appropriate  duty.  This  view  was  adopted 
by  Blackburn,  J.,  in  a  judgment  affirmed  by  the  Exchequer  Cham- 
ber {Morgan  v.  Vale  of  Neath  Ry.  Co.,  5  B.  &  S.  570,  at  p.  580; 
Law  Rep.  i  Q.  B.  149),  in  these  words:  "I  quite  agree  that  it  is 
necessary  that  the  employment  must  be  ct»mmon  in  this  sense,  that 
the  safety  of  the  one  ser'tant  must  in  the  ordinary  and  natural  course 
of  things  depend  on  the  care  and  skill  of  the  others.  This  includes 
almost  if  not  every  case  in  which  the  servants  are  employed  to  do 
joint  work,  but  I  do  not  think  it  is  limited  to  such  cases.  There  arc 
many  cases  where  the  immediate  object  on  which  the  one  servant 
is  employed  is  very  dissimilar  from  that  on  which  the  other  is  em- 
ployed, and  yet  the  risk  of  injury  from  the  negligence  of  the  one 
is  so  much  a  natural  and  necessary  consequence  of  the  employment 
which  the  other  accepts,  that  it  must  be  included  in  the  risks  whicli 
are  to  be  considered  in  his  wages."  On  this  principle,  it  having 
been  previously  decided  in  Hutchinson  v.  York.  etc..  Ry.  Co.  (5 
Ex.  343),  that  the  engine-driver  of  a  train  and  a  servant  of  the 
company  carried  in  the  train  were  in  common  employment,  it  was 
held  that  a  carpenter  repairing  a  turntable  was  in  common  em- 
ployment with  shunters  working  traffic  in  connection  with  it.  The 
view  of  Shaw,  C.  J.,  appears  again  to  have  been  followed  in  Lovell 
V.  Howell  (i  C.  P.  D.  161),  in  which  the  principle  approved  was 
that  the  servant  accepts  the  ordinary  risk  incident  to  his  service.  The 
principle  of  safetv  being  dependent  "in  the  ordinary  and  natural 
course  of  things"  on  the  skill  and  care  of  the  fellow-serv^ant,  and 
of  "risk  of  injury  being  a  natural  and  necessary  consequence"  of 
his  want  of  skill  or  care,  is  consistent  with,  though  perhaps  more 


28  APPENDIX. 

exact  than,  the  test  suggested  by  Lord  Chelmsford  in  the  case  of 
the  Bartonshill  Coal  Co.  v.  McGuire  from  the  negative  point  of 
view,  that  common  employment  does  not  exist  when  injury  hap- 
pens to  the  servant  "on  occasions  foreign  to  his  employment,"  or 
to  servants  engaged  "in  different  departments  of  duty."- 

It  was  suggested  in  argument  before  me  with  reference  to 
the  case  of  Charles  v.  Taylor  (3  C.  P.  D.  492),  that  the  physical 
contiguity  of  the  employments  constitute  a  test.  But,  as  Shaw, 
C.  J.,  points  out,  this  does  not  afford  a  distinction  on  which  a  prac- 
tical rule  can  be  established.  In  all  cases  the  immediate  instru- 
ment of  physical  injury  must  be  contiguous  to  the  person  injured, 
and  in  most  cases  the  person  who  causes  physical  injury  is  not  far 
from  the  person  to  whom  it  results.  But  I  suppose  that  the  sig- 
nalman at  one  end  of  a  rifle-range  is  clearly  in  common  employ- 
ment with  the  marker  at  the  other,  when  the  two  have  a  common 
master;  and,  to  give  a  stronger  instance,  a  servant  who  unskill- 
fully  packs  dynamite  in  a  factory,  and  another  who,  in  unpack- 
ing it  at  a  distant  warehouse,  is  injured  by  its  explosion,  are  clearly 
in  common  employment.  On  the  other  hand,  mere  contiguity,  if 
unusual  or  accidental,  would  not  be  consistent  with  common  em- 
ployment. 

I  doubt,  also,  if  "one  common  object" — the  phrase  empha- 
sized by  Bramwell,  B.,  in  Waller  v.  South  Eastern  Ry.  Co.  (2  H.  & 
C.  102,  at  p.  112) — supplies  an  exact  criterion.  As  Blackburn,  J., 
points  out,  there  may  be  common  employment,  though  the  immediate 


'Accord:  Northern  Pacific  Railroad  v.  Hamhly,  154  U.  S.  349  (1893), 
track  repairer  held  to  be  fellow  servant  with  the  crews  of  trains  running 
thereon — "As  a  laborer  upon  a  railroad  track,  either  in  switching  trains" 
[Randall  v.  R.  R.,  109  U.  S.  478  (1883)]  "or  repairing  the  track,  is  constantly- 
exposed  to  the  danger  of  passing  trains  and  bound  to  look  out  for  them, 
any  negligence  in  the  management  of  such  trains  is  a  risk  which  may  or 
should  be  contemplated  by  him  in  entering  the  service  of  the  company.  This 
is  probably  the  most  satisfactory  test  of  liability.  If  the  department  of  the 
two  servants  are  so  far  separated  from  each  other  that  the  possibility  of 
coming  in  contact  and  hence  of  incurring  danger  from  the  negligent  per- 
formance of  the  duties  of  such  other  department,  could  not  be  said  to  be 
within  the  contemplation  of  the  person  injured,  the  doctrine  of  fellow  service 
should  not  apply,"  Brown.  J.,  p.  357-  The  majority  of  American  jurisdictions 
adopt  this  view;  see  Labatt  on  Master  and  Servant,  Vol.  II,  §498.  n.  i,  where 
a  great  number  of  cases  down  to  1901  showing  its  application  to  various 
classes  of  employees  in  various  businesses  are  collected.  In  Baird  v.  Petfit, 
70  Pa.  477  (1892),  Williams,  J.,  says,  p.  482,  "Servants  are  engaged  in  a  com- 
mon employment  when  each  of  them  is  occupied  in  service  of  such  a  kind 
that  all  the  others  in  the  exercise  of  ordinary  sagacity  ought  to  be  able  to 
foresee,  when  accepting  their  employment,  that  it  probably  may  expose  them 
to  the  risk  of  injury  in  case  he  is  negligent.  That  this  is  the  proper  test_  is 
evident  from  the  reason  assigned  for  the  exemption  of  masters  from  liability 
to  their  servants,  viz.:  that  the  servant  takes  the  risk  into  account  when 
fixing  his  wages  He  cannot  take  into  account  a  risk  which  he  has  no  reason 
to  anticipate.'  and  he  does  take  into  account  the  risks  which  the  average  ex- 
perience of  his  fellow  has  led  h\m  (sic),  as  a  '^J^ss  to  anticipate.  See  also 
Trenchard.  T.,  in  Harris  v.  5.  S.  Co..  75  N.  J.  L.  861  Ctoo8\  p.  864:  They 
were  all  serving  and  controlled  by  the  same  master  in  a  common  employment 
of  such  a  kind  that,  in  the  exercise  of  ordinary  sagacity,  all  engaeed  in  it  were 
able  to  foresee,  when  accepting  it.  that  the  negligence  of  a  fellow  servant 
would  probably  expose  them  to  injury." 


CHICAGO  &   N.   W.   RV.   CO.  V.    MORAXDA,  ADMX.  29 

object  of  the  labor  of  the  two  servants  be  very  different,  and  if 
the  common  object  be  remote,  such  as  that  of  making  money  for  the 
employer^  (the  sole  nexus  of  employment  suggested  as  existing 
between  the  two  captains  in  this  casej,  there  may  be  no  common 
employment.  If  a  person  carried  on  the  occupation  of  a  banker 
and  a  brewer  in  different  localities,  and  his  bill  clerk  was  run  over 
by  his  drayman,  it  would  be  strange  to  say  that  the  two  were  serv- 
ants in  common  employment.  I  think,  therefore,  that  probably  no 
more  complete  definition  can  be  formulated  than  is  afforded  by  the 
language  of  Blackburn,  J.  The  consideration  that  the  risk  of  in- 
jury to  the  one  servant  is  the  natural  and  necessary  consequence  of 
misconduct  in  the  other  implies  that  the  skill  and  care  of  the  one 
is  of  special  importance  to  the  other  by  reason  of  the  relations  be- 
tween their  services. 

Tried  by  this  principle,  can  it  be  said  that  the  safety  of  the 
captain  of  one  ship  of  a  company  is  in  the  ordinary  and  natural 
course  of  things  dependent  on  the  skill  and  care  of  the  captain  of 
another  ship  of  the  same  company,  or  that  injury  by  the  negligence 
of  one  is  an  ordinary  risk  of  the  service  of  the  other?  In  some 
cases  it  might  perhaps;  for  example,  it  might  if  all  the  ships  of  the 
company  were  in  the  habit  of  meeting  in  the  same  dock,  and  the 
safety  of  each  thus  became,  in  the  ordinary  course  of  things,  depend- 
ent on  the  skill  with  which  the  other  was  navigated.  But  in  regard 
to  navigation  on  the  high  seas,  or  in  the  estuary  of  the  Thames, 
would  a  captain  of  one  ship  of  the  General  Steam  Navigation  Com- 
pany have  more  reason  to  be  interested  in  the  skill  of  a  captain  of 
another  ship  of  the  company  than  in  that  of  the  masters  of  the 
myriad  other  craft  in  whose  vicinity  he  might  happen  to  navigate? 
By  no  reasonable  supposition  can  it  be 'imagined  that  he  would. 
I  think,  therefore,  that  these  two  captains  were  not  in  common  em- 
ployment.* 


CHICAGO  &  NORTHWESTERN  RAILWAY  CO.  v. 
MORANDA,  ADMX. 

Supreme  Court  of  Illinois,  1879.     93  Illinois,  302. 

Dickey,  J. :  John  Moranda  was  the  foreman  of  a  party  of 
track  repairers,  whose  duty  it  was  to  repair  and  keep  in  order  a 
section   of   the    railroad    track   of   appellant,   and    to   be    upon    the 


^Accord:  Connolly  v.  Davidson,  15  Minn.  519  (1870),  the  crews  of  two 
river  steamers  ov/ned  by  a  partnership  but  operated  separately,  each  under 
the  direction  and  control  of  a  different  partner,  held  not  to  be  fellow  servant.":. 

*  Accord:  Connolly  v.  Davidson,  supra,  note  2;  McTaggart  v.  Eastman's 
Co.,  57  N.  Y.  Supp.  222  (1899),  a  hod  carrier  engaged  in  the  erection  of  the 
wails  of  an  addition  to  the  defendant's  premises  held  not  to  be  a  fellow  servant 
of  a  driver  of  its  delivery  wagon. 

It  would  appear  that  a  domestic  servant  is  not  regarded  as  a  fellow  ser- 
vant of  one  emploved  by  such  servant's  master  in  his  business  or  manufac- 
turing establishment,  Rttsscll  v.  R.  R.,  17  N.  Y.  134  (1858),  p.  137  scmhlc, 
nor  is  a  household  servant  in  a  common  employment  with  other  servants 
employed  in  the  stables  or  about  the  estate  of  his  master.  Lord  McNeill. 
Gre\  V.  Brassex.  15  Dunlop  (Sc.  Sess.  Cases,  1852),  135,  p.  139. 


30  APPENDIX, 

track  and  see  that  it  was  kept  in  order  for  the  running  of  trains. 

The  hypothesis  on  which  it  is  sought  to  sustain  the  recov- 
ery in  the  circuit  court  in  this  case  is,  that  while  Moranda 
was  so  'engaged  in  his  duty  an  express  train  passed  by  at  the  rate 
of  some  thirty  to  thirty-five  miles  an  hour;  that  on  the  approach 
of  the  train  to  the  place  where  Aloranda  and  his  party  were  at 
work  on  the  track  they  stepped  aside  to  avoid  the  passing  train,  he 
standing  some  five  or  six  feet  from  the  nearest  rail  of  the  track ; 
and  that  as  the  train  passed,  a  large  lump  of  coal  was  carelessly 
cast  by  the  fireman  from  the  tender  attached  to  the  locomotive, 
which  struck  Aloranda  and  caused  his  death. 

This  is  an  action,  under  the  statute,  by  the  administratrix  of 
the  estate  of  deceased.  Appellant  pleaded  not  guilty.  A  trial  by 
jury  resulted  in  a  verdict  of  guilty,  and  an  assessment  of  plain- 
tiff's damages  at  the  sum  of  84,000,  and  after  overruling  a  motion 
for  new  trial,  the  court  rendered  judgment  upon  the  verdict.^ 

There  is,  however,  another  question  raised  by  counsel  for  ap- 
pellant which  will  necessarily  arise  upon  another  trial,  and  ought 
therefore  to  be  decided  now. 

It  is  insisted  that  "the  plaintiff's  intestate  and  the  persons  run- 
ning the  locomotive  bore  such  relation  to  each  other  in  the 
service  of  appellant,  that  one  could  not  recover  of  the  common 
employer  damages  caused  by  the  negligence  or  carelessness  of  the 

other.'' 

We  think  this  position  is  not  tenable.  In  Chicago  and 
Northwestern  Railroad  Co.  v.  Szvett,  45  111.  197,  a  case  in  which 
the  fireman  was  killed  by  reason  of  the  negligence  of  the  track 
repairers,  it  was  held  that  the  doctrine  in  relation  to  fellow  serv- 
ants did  not  forbid  the  action. 

In  Chicago,  Burlington  and  Quincy  Railroad  Co.  v.  Gregory, 
S8  111.  272,  the  right  of  action  was  sustained  where  a  fireman  on 
a  passing  '  train  was  killed  by  a  "mail  catcher"  improvidently 
placed  too  near  the  track  bv  other  servants  of  the  railroad  com- 
pany. In  that  case  it  was  said  the  agents  charged  with  the  duty 
of  properly  locating  the  "mail  catcher"  had  no  possible  connec- 
tion with  the  running  of  trains,  in  which  service  the  fireman  was 
engaged,  and  it  was  added :  "The  duties  were  as  different  and 
asllistin'ct  as  those  of  a  conductor  and  of  a  track  repairer."  ^ 

The  ancient  common  law  rule  which  holds  a  master  (even 
in  cases  where  he  is  guilty  of  no  fault)  responsible  for  the  neglect 
of  his  servant,  where  a"  third  person  suffers  damage  from  the 
nec^ligence  of  such  servants,  rests  entirely  upon  considerations  oi 
its'' practical  effect  upon  society— upon  considerations  of  policy, 
and    the'^e   considerations    of    policy    rest    upon    the   idea   that    the 


'A  oart  of  the  opinion,  holding  that  the  judgment  must  be  reversed  for 
error  in  allowing  the  plaintiff  to  prove  that  she  and  her  children  had  no 
means    of    support    other    than    her    deceased    husbands    daily    earnings,    is 

omitted.  .  ,  ,.      ^,,.     .  .  ^     , 

-  \  large  portion  of  the  opinion  citmg  earher  Ilhnois  cases  m  support  ot 

the  view  adopted   and  distinguishing  the  cases  cited  by  the  counsel   for  the 

appellant    the  defendant  below,  is  omitted.     Sheldon,  J.,   dissents,   filing  no 


opinion. 


CHICAGO  &   N.   W.  RV.   CO.  V.   MORANDA,  ADMX.  3  I 

subordination   of   the   servant   to   the   will   of   the   master   and   his 
devotion    to    the    interests    of    the    master    give    him,    under    that 
rule,  incentives  to  caution  he  would  not  otherwise  have,  and  upon 
the  idea  that  the   rule   will  incite   the  master  to  greater  vigilance 
in   the   selection   of   prudent   servants,   and   to   greater   zeal   in   the 
exercise  of  his   influence  over  his   servant  to   secure  the   exercise 
of   care   in   all   cases.      When   the   reason   of   the   rule   ceases,    the 
application  of  the  rule  ought  also  to  cease,  and  especially  is  this 
true   of  a   rule   which   rests   not  upon   its   own   justice,   but  solely 
upon    considerations    of    policy.      Where    servants    of    the    same 
master   are   directly   co-operating   with   each   other   in   a   particular 
business  at  the  time  of  the  injury,  or  are,  by  their  usual  duties, 
brought  into   habitual  consociation,   it  may   well  be   supposed   that 
they  have  the  power  of  influencing  each  other  to  the  exercise  of 
constant  caution   in  the  master's   work    (by  their  example,   advice 
and  encouragement  and  by  reporting  delinquencies  to  the  master) 
in    as    great,    and    in    most    cases    in    a    greater,    degree    than    the 
master.     If,  then,  each  such  servant  knows  that  neither  he  nor  his 
fellow  servant,  if  injured  by  the  others'  negligence,  can  have  re- 
dress   against    the    master,    he    has    such    incentive    to    constant 
care,  and  such  incentive  to  the  exercise  of  his  influence  upon  his 
fellow  to  incite  him  to  constant  care,  that  the  well-being  of  society 
in   such   case   does   not   demand   that   the  master   be   made   to   an- 
swer.^     The    same    considerations    of    policy    which,    to   avoid    in- 
juries to  third  persons,   usually   demand   that  the  master  be   held 
responsible,    seem   plainly   not   to   demand   it   in  the   case   of   such 
co-servants.      But    though    servants    are    employed    by    the    same 
master,  and  are  engaged  in  doing  parts  of  some  great  work  car- 
ried  on  by   the   master,   still,   unless   either   their   duties    are   such 
that   they   usually   bring  about  personal    association   between    such 
servants,    or    unless    they    are    actually    co-operating    at    the    time 
of  the  injury  in  the  business  in  hand,  or  in  the  same  line  of  em- 
ployment,  they   have   generally   no   power   to   incite   each   other   to 
caution  by   counsel,   exhortation   or   example,   or  by   reporting  de- 
linquencies  to  the  master,   and  the   well-being  of   society   in   such 
case   must   depend    upon   the   devotion    of   the    servant   to   the    in- 
terests of  the  master,   and   the   zeal   of   the  master  to   promote   a 
constant  exercise  of  due  care  by  his  servant;  and  to  bring  these 
instrumentalities  into  action  it  becomes  necessary   (as  in  the  case 
of  an  injury  to  a  stranger)   to  adhere  to  the  general  rule  that  the 
master  must  answer   for  the  neglect  of  his   servant,   and   this,   as 
already  suggested,  because  the  facts  are  such  that  society  cannot, 
in   such  case,   avail   itself   of   the   mutual   power  and   influence   of 
one  servant  upon  another   for  want  of  the  necessary  opportunity 
for  its  exercise,  and  hence  must  depend   for  inducements  to  cau- 
tion which  are  supposed  to  follow  the  general  rule  of  the  master's 
liability.* 

'"The  ol)ject  of  the  rule  is  to  make  such  servants  vigilant  in  seeing  that 
others  are  careful,  prudent,  and  faithful  in  the  discharge  of  their  duty;  if 
not  that  it  shall  he  to  their  interest  to  report  all  derelictions  that  occur." 
Walker,  C.  J.,  Pittsburgh,  etc.,  R.  R.  v.  Powers,  74  111  .341   (1874),  p.  345. 

*The  doctrine  of  the  principal  case  prevails  also  in  Missouri,  Sullivan  v. 


^2  APPENDIX. 

Gaines,  Associate  Justice,  in  Missouri  Pacific  Railway  Co.  v. 
Williams,  75  Texas,  4  (1889)  : 

A  servant  who  has  the  authority  to  employ  other  servants 
under  his  immediate  supervision  exercises  an  important  function 
of  his  master,  and  has  as  full  control  over  them  as  the  master  would 
have  were  he  present,  acting  in  person.  The  subordinate  in  such 
a  case  is  in  fact  as  much  the  servant  of  the  agent  who  employs 
and  controls  him,  as  he  would  be  of  the  master  were  the  latter 
discharging  the  functions  of  his  agent.  It  would  seem,  therefore, 
that  there  is  as  much  reason  for  holding  that  a  servant  assumes 
the  risk  of  the  master's  negligence,  as  for  holding  that  he  assumes 
the  risk  of  the  negligence  of  such  a  superior  employe  of  his  mas- 
ter.    He  may  be  presumed  to  exercise  an  influence    over    a    co- 


R.  R.,  97  Mo.  113  (1888)  ;  Lanning  v.  R.  R.,  196  Mo.  227  (1907)  ;  Nebraska, 
Union  Pac.  R.  R.  v.  Erickson,  41  Neb.  i  (1894)  ;  Utah,  Dryburgh  v.  Mining 
Co.,  18  Utah,  410  (1898),  Meyers  v.  R.  R.,  104  Pac.  736  (1909)  ;  Washington, 
Hamnierberg  v.  R.  R.,  19  Wash.  537  (1898)  ;  Hale  v.  Crown,  etc..  Paper  Co., 
105  Pac.  480  (1909)  ;  West  Virginia,  Madden  v.  R.  R.,  28  W.  Va.  610  (1898). 
and  Kentucky,  Chesapeake,  etc.,  R.  R.  v.  Cavens,  9  Bush,  566  (1873),  for  the 
peculiar  position  of  the  Kentucky  courts  upon  this  and  other  similar  ques- 
tions see  Labatt  on  Master  and  Servant.  §549,  note  i,  Vol.  2,  p.  1589.  In 
Tennessee  it  is  applied  to  employees  of  railroads,  Nashville  R.  R.  v.  Carroll, 
6  Heisk.  34  (1871),  but  not  to  those  employed  in  other  businesses,  Coal 
Creek  Co.  v.  Davis,  90  Tenn.  711  (1891).  Dicta  favorable  to  this  view  are 
found  in  Louisiana-  cases,  as  in  Stucke  v.  R.  R.,  50  La.  Ann.  188  (1898).  The 
doctrine  appears  to  have  been  adopted  at  one  time  in  Georgia,  Virginia,  and, 
perhaps,  Indiana,  Cooper  v.  Mullins,  30  Ga.  146  (i860)  ;  Moon  v.  R.  R.,  78  Va. 
746  (1884),  and  Gillenwater  v.  R.  R.,  6  Ind.  339  (1854),  but  has  been  repudi- 
ated in  the  later  decisions,  which  follow  the  rule  laid  down  in  Northern  Pac. 
R.  R.  V.  Hambly,  154  U.  S.  349  (1893);  Brush  Co.  v.  Wells,  no  Ga.  192 
(1899)  ;  Ga.  Coal  Co.  v.  Broadzvood,  131  Ga.  289  (1908)  ;  Norfolk,  etc.,  R.  R. 
V.  Nuckolds.  91  Va.  193  (1895),  and  Gormly  v.  R.  R..  72  Ind.  31   (1880). 

Two  servants  of  the  same  master  are  regarded  as  fellow  servants  under 
this  rule  only  where  "they  are  directly  co-operating  with  each  other  in  a  par- 
ticular business  in  the  same  line  of  employment"  [the  co-operation  being  only 
temporary,  the  servants  being  generally  employed  in  separate  departments, 
Abend  v.  R.  R.,  in  111.  (1884)  203],  "or  where  their  duties  bring  them  into 
habitual  association,"  so  "that  they  may  exercise  a  mutual  influence  on  one 
another  promotive  of  proper  caution"  {Chicago,  etc.,  R.  R.  v.  Kneirim,  152 
111.  458  (1894),  as  construed  in  Chicago,  e'c,  R.  R.  v.  Swan,  176  111.  424 
(1898)  ;  but  see  Illinois,  etc.,  R.  R.  v.  Swisher,  74  111.  App.  164  (1897)  and 
Chicago,  etc.,  R.  R.  v.  Stallings,  90  111.  App.  609  (1900).  and  "can  report  de- 
linquencies to  a  common  correcting  power";  Relyea  v.  R.  R.,  112  Mo.  86 
(1892),  p.  93.  .       . 

That  the  two  servants  are  worknig  under  the  same  superior  is  regarded, 
in  Missouri,  as  decisive  as  to  their  being  fellow  servants,  Dixon  v.  R.  R.,  109 
Mo.  431  (1891)  ;  so  in  Lanning  v.  R.  R.,  supra,  the  employees  were  held  not 
to  be  fellow  servants  since  "each  looked  to  a  different  individual  as  the 
master's  representative  for  directions  in  his  work  and  had  no  practical  con- 
nection with  the  superior  who  guided  the  acts  and  conduct  of  the  other,"  p. 
660:  in  Illinois,  on  the  contrary,  this  is  not  decisive  but  is  regarded  as  merely 
a  fact,  though  an  important  one.  for  the  jury's  consideration,  Chicago,  etc., 
R.  R.  V.  O'Brien,  155  111.  636  (1895)  ;  but  see  R.  R.  v.  Swisher  and  R.  R.  v. 
Stallings,  supra. 

As  to  the  respective  functions  of  court  and  jury  in  determining  whether 
fellow  service  exists,  see  Lake  Erie,  etc.,  R.  R.  v.  Middleton,  142  111.  550 
(1892).  For  a  full  collection  of  cases,  down  to  1901,  illustrating  the  appli- 
cation of  this  doctrine  to  various  classes  of  servants  variously  associated  in 
various  businesses,  see  Labatt  on  Master  and  Servant.  §506,  note   i. 


WILSON  V.    MRRRV  .S:  CUNNINGHAM.  33 

employe  who  did  not  employ  and  has  no  power  to  discharge  him, 
calculated  to  promote  care  and  vigilance  on  the  part  of  the  latter^ 
which  he  can  not  or  dare  not  exercise  towards  one  who  has  the 
right  to  terminate  his  employment.  There  is  reason  therefore  for 
adhering  to  the  previous  ruling  of  this  court,  and  for  holding 
that  if  the  plaintiff  in  this  case  was  under  the  immediate  control 
of  Holmes,  and  Holmes  had  the  power  to  employ  and  discharge 
the  servants  under  him,  Holmes  is  to  be  treated  as  the  representa- 
tive of  the  company  and  not  the  fellow-servant  of  the  plaintiff.^ 


SECTION    2. 
The  Master's  Duty  to  His  Servant. 


WILSON  V.  MERRY  &  CUNNINGHAM. 
House  of  Lords,  1868.    L.  R.  1st  Scotch  &  Div.  App.  Cases,  2,27. 

The  respondents  were  the  owners  of  the  Haughhead  Coal 
pit  in  Lanarkshire.  The  upper  seam  having  been  worked  out, 
they  determined  to  work  the  next  underlying  seam.  In  order 
to  open  this  seam  from  the  side  of  the  pit  a  scaffold  was  erected 
in  the  side  of  the  pit  from  and  by  means  of  which  to  drive  the 
level  in  the  new  seam.  This  scaffold  was  completed  on  a  Sat- 
urday and  on  the  following  Monday,  Henry  Wilson,  a  son  of 
the  appellant,  was  engaged  to  assist  in  driving  this  level  and 
on  Tuesday  went  to  work.  The  scaffold  as  erected  interrupted 
the  ventilation  of  the  mine,  and  it  appears  that  in  consequence 
fire-damp  accumulated  beneath  the  platform  of  the  scaffokl,  and 
on  the  \Vednesday,  wl^^le  the  appellant's  son  was  searching,  with 
a  light,  for  a  missing  tool,  his  light  came  in  contact  with  the  fire- 
damp, an  explosion  took  place  and  he  was  killed. 

It  was  not  suggested  that  the  respondents  themselves  took 
any  part  in  the  erection  of  the  scaffold,  nor  was  any  personal 
fault  attributed  to  them.  The  general  manager  of  their  works 
in  Lanarkshire  was  Mr.  Jack.  The  manager  of  the  pit  was  John 
Neish.  Under  him  was  a  man  named  Bryce,  who  attended  to 
the  underground  operations.  The  charge  of  sinking  the  pit,  and 
making  arrangements  underground  for  working  it,  was  given 
to  Neish.  It  was  proved  at  the  trial  that  Jack  and  Neish  were 
competent  persons  for  the  work  on  which  they  were  engaged ; 
selected  by  the  respondents  with  due  care;  and  furnished  by  them 
with  all  necessary  materials  and  resources  for  working  in  the 
best  manner. 


^Accord:  Bryan  v.  R.  R.,  128  N.  C.  387  (1901),  and  see  Denver,  etc.,  R. 
R.  V.  Driscoll,  12 "Colo.  520  (1889). 

The  master  is  as  much  liable  for  the  negligence  of  a  superior  servant  to 
whom  is  intrusted  the  power  to  employ  and  discharge  subordinates,  whether 
it  consist  of  an  improper  exercise  of  some  authority  conferred  upon  him  by 
virtue  of  his  position  or  a  mere  slip  or  carelessness  in  a  matter  of  mere  manual 
detail,  such  as  is  usually  left  to  an  ordinary  workman.  Sweeney  v.  R.  R..  84 
Tex.  433  (1892). 


34  APPENDIX. 

The  cause  was  tried  before  Lord  Ormidale  and  a  verdict 
found  for  the  appellant,  assessing  damages  iioo.  Two  excep- 
tions were  taken  to  Lord  Ormidale's  directions  to  the  jury;  the 
second  of  which  was  allowed  by  the  Court  of  Sessions  and  a  new 
trial  granted.  It  is  on  this  exception  alone  that  your  Lordships 
are  now  called  to  express  an  opinion,  the  appellant  having  ap- 
pealed against  the  interlocutor  of  the  Courts  of  Session  allowing 
the  exception. 

This  exception  was  taken  to  a  part  of  Lord  Ormidale's  di- 
rections to  the  jury,  in  which  he  charged  them  that  "if  they  were 
satisfied  on  the  evidence  that  the  arrangement  or  system  of  ven- 
tilation in  the  Haughhead  pit  at  the  time  of  the  accident  had  been 
designed  and  completed  by  Neish  before  the  deceased,  Henry 
Wilson,  was  engaged  to  work  in  the  pit  and  that"  the  defenders 
had  delegated  their  whole  power,  authority  and  duty  in  regard 
to  that  matter  and  also  in  regard  generally  to  all  the  under- 
ground operations  without  control  or  interference  on  their  part, 
the  deceased,  Henry  Wilson,  and  Neish  did  not  stand  in  the  rela- 
tion cf  fellow  workmen  engaged  in  the  same  common  employ- 
ment, and  the  defenders  were  not  on  that  ground  relieved  from 
liability  to  the  Pursuer  for  the  consequences  of  fault  if  any  there 
was  on  the  part  of  Neish  in  designing  and  completing  said  ar- 
rangement, or  system  of  ventilation."  ^ 

The  Lord  Chancellor  (Lord  Cairns)  :  "My  Lords,  I  do 
not  think  the  liability,  or  non-liability,  of  the  master  to  his 
workmen  can  depend  upon  the  question  whether  the  author  of 
the  accident  is  not,  or  is,  in  any  technical  sense,  the  fellow  work- 
man, or  collaborateur,  of  the  sufferer.  In  the  majority  of  cases 
in  which  accidents  have  occurred  the  negligence  has,  no  doubt, 
been  the  negligence  of  a  fellow  workman ;  but  the  case  of  the 
fellow  workman  appears  to  me  to  be  an  example  of  the  rule,  and 
not  the  rule  itself.  The  rule,  as  I  think,  must  stand  upon  higher 
and  broader  grounds.  As  is  said  by  a  distinguished  jurist:  Ex- 
cmpla  non  restringunt  regulum,  sed  loquntur  de  casibiis  crchriori- 
hiis  {Donnellus  dc  Jure  Civ.,  L.  9,  c.  2,  n).  The  master  is  not, 
and  cannot  be,  liable  to  his  servant  unless  there  be  negligence  on 
the  part  of  the  master  in  that  in  which  he,  the  master,  has  con- 
tracted or  undertaken  with  his  servants  to  do.  The  master  has 
not  contracted  or  undertaken  to  execute  in  person  the  work  con- 
nected with  the  business.  The  result  of  an  obligation  on  the 
master  personally  to  execute  the  work  connected  with  his  busi- 
ness, in  place  of  being  beneficial,  might  be  disastrous  to  his  serv- 
ants, for  the  master  might  be  incompetent  personally  to  per- 
form the  work.  At  all  events  a  servant  may  choose  for  him- 
self between  serving  a  master  who  does,  and  a  master  who  does 
not,  attend  in  person  to  his  business.  But  what  the  master  is,  in 
my  opinion,  bound  to  his  servant  to  do,  in  the  event  of  his  not 
personally  superintending  and  directing  the  work,  is  to  select  proper 


*  Only  a  part  of  the  opinion  of  the  Lord  Chancellor  is  given  and  the 
facts  above  set  forth  are  slightly  condensed  from  those  given  by  him  in  his 
opinion. 


WILSON   v.    MERRY  &  CUNNINGHAM.  35 

and  competent  persons  to  do  so,  and  to  furnish  them  with 
adequate  materials  and  resources  for  the  work.  When  he  has 
done  this  he  has,  in  my  opinion,  done  all  that  he  is  bound  to  do. 
And  if  the  persons  so  selected  are  guilty  of  negligence  this  is 
not  the  negligence  of  the  master;  and  if  an  accident  occurs  to  a 
workman  to-day  in  consequence  of  the  negligence  of  another 
workman,  skillful  and  competent,  who  was  formerly,  but  is  no 
longer  in  the  employment  of  the  master,  the  master  is,  in  my  opin- 
ion, not  liable,  although  the  two  workmen  cannot  technically  be 
described  as  fellow  workmen.  As  was  said  in  the  case  of  Tar- 
rant  v.  ]]'cbb,  25  L.  J.  (N.  S.),  C.  P.  263,  negligence  cannot  exist 
if  the  master  does  his  best  to  employ  competent  persons;  he  cannot 
warrant  the  competency  of  his  servants."  - 

Interlocutor  affirmed,  and  appeal  dismissed  with  costs. 

•  It  would  appear  that,  at  least  until  after  the  passage  of  the  Employers' 
Liability  Act  of  1880.  the  master  was  liable  only  if  personally  guilty  of  some 
lack  of  care  for  the  servant's  safety,  and  that  he  was  regarded  as  having  fully 
performed  his  duty  when  he  had  employed  a  competent  manager  or  super- 
intendent to  manage  the  business  and  had  supplied  him  with  suitable  and 
sufficient  materials  and  resources  for  properly  conducting  it.  See  the  cases 
cited  by  Nesbitt,  J.,  in  his  dissenting  opinion  in  Canada  Woolen  Mills  v. 
Traplin,  35  5.  C.  Canada,  424  (1904),  and  see  "Employers'  Liablity  in  England 
prior  to  the  Act  of  1880,"  by  J.  T.  Carey,  58  Am.  L.  Reg.  259.  It  was, 
hovyever,  held  in  that  case  by  the  majority  of  the  court,  that  a  corporation 
is  liable  for  injuries  received  by  fall  of  an  elevator  allowed  to  fall  into 
disrepair,  though  it  had  been  held  in  Wilson  v.  Hume,  30  U.  C.  C.  P.  542 
(t88o),  that  the  owners  of  a  vessel  were  not  liable  for  the  negligent  selection 
of  incompetent  sailors  by  the  captain. 

While  in  Wonder  v.  R.  R.,  2>'2.  Md.  411  (1870);  Columbus,  etc.,  R.  R.  v. 
Arnold,  31  Ind.  174  (1869)  ;  and,  perhaps,  Albro  v.  Agawam  Canal  Co.,  6 
Cush.  75  (1850),  it  is  intimated  that  a  master  o^es  no  duty  beyond  employing 
competent  foremen  and  sijperintendents — this  very  restricted  idea  of  the 
master's  liability  has  universally  given  place  to  the  conception  that  the 
master  is  bound  to  answer  for  the  care  with  which  those  to  whom  he  entrusts 
the  selection  of  his  servants,  or  the  preparation  or  maintenance  of  a  safe  and 
proper  plant  or  premises,  perform  these  powers ;  Oilman  v.  R.  R.,  13  Allen 
(95  Mass.)  433  (1866)  ;  Snozv  v.  R.  R.,  8  Allen  (90  Mass.)  438  (1864)  ;  Ford 
v.  R.  R.,  no  Mass.  240  (1872),  and  that  he  is  bound  to  exercise  an  oversight 
over  his  business  sufficient  to  detect  any  obvious  ill  management.  Rice  v.  King 
Philip  Mills,  144  Mass.  229  (1887).  per  Field,  J.,  pp.  235-236,  and  see  Dill  v. 
Mannon,  164  Ind.  507  (1905). 

Compare  with  the  principal  case  such  statements  as  that  of  Brewer,  J., 
in  Northern  Pacific  R.  R.  v.  Dixon,  194  U.  S.  338  (1903),  p.  346,  "A  momentary 
act  of  negligence  is  charged  against  the  telegraph  operator.  Xo  reasonable 
amount  of  care  and  supervision  which  the  master  had  taken  beforehand  would 
have  guarded  against  such  unexpected  and  temporary  acts  of  negligence.  Be- 
fore an  employee  should  be  held  responsible  in  damages  it  should  appear  that 
in  some  way,  by  the  exercise  of  reasonable  care  and  prudence,  he  could 
have  avoided  the  accident." 

So  in  American  Bridge  Co.  v.  Seeds,  144  Fed.  605  (C.  C.  A.  6th  Circ, 
1906),  Sanborn,  J.,  distinguishes,  p.  611,  "risks  of  operation,"  which  the  ser- 
vant assumes,  from  risks  "of  construction  or  provision"  from  which  he  may 
expect  the  master  to  protect  him  ;  and  see  Holmes,  J.,  Kalleck  v.  Decring,  161 
Mass.  469  (1894),  p.  470.  and  Gillett,  J.,  Dill  v.  M  arm  on,  164  Ind.  507  (1905). 
p.  520. 

In  Ashcroft  v.  Stanwi.v,  3  Ellis  &  Ellis,  701  (Eng.,  1861),  it  was  held 
that  notice  to  one  partner  of  a  defect  was  notice  to  the  other,  and  it  is  inti- 
mated that  the  personally  innocent  partners  who  take  no  part  in  the  conduct 
of  the  business  are  liable  for  the  negligent  acts  of  a  managing  partner.  See 
also,  Mellors  v.  Shaw,  i  B.  &  S.  437  (1861,  Eng.),  but  cf.  Crispin  v.  Babbitt, 
post 


36  APPEXniX. 


CHURCH  V.  CHICAGO,  MILWAUKEE  &  ST.  PAUL 

RY.  CO. 
Supreme  Court  of  Minnesota,  1892.     50  Minn.  218. 

Mitchell,  J. :  Taking  the  admissions  in  the  pleadings,  the  evi- 
dence admitted,  and  accepting  as  true  all  that  plaintiff  offered  to 
prove,  the  facts  in  this  case  were  as  follows : 

Plaintiff  had  been  in  the  employment  of  the  defendant  as  a 
brakeman  on  a  freight  train  running  east  of  Calmar,  Iowa.  Having 
been  taken  ill,  he  had  gone,  on  a  leave  of  absence,  to  his  home  in 
Northfield,  Minn.  On  the  day  in  question  he  went  down  to  defend- 
ant's depot  in  Northfield,  for  the  purpose  of  writing  or  telegraphing 
to  Austin  for  a  pass  over  defendant's  road  to  go  back  to  his  work. 
While  he  was  at  the  depot  a  wrecking  train  came  into  the  station 
in  charge  of  a  conductor,  and  with  an  engineer,  fireman,  and  two 
brakemen,  one  of  whom  is  called  "head  brakeman."  This  train  was 
on  its  way  to  pick  up  a  wreck,  and,  in  addition  to  an  engine  and  ten- 
der, consisted  of  two  or  more  flat  cars,  upon  one  of  which  was  loaded 
a  derrick,  and  on  another  two  pair  of  heavy  car  trucks.  After  the 
train  pulled  into  the  station  the  trainmen  proceeded  to  switch  the 
cars  and  transpose  them  so  as  to  put  the  "derrick  car"  in  the  rear, 
and  place  the  "truck  car"  next  in  front  of  the  derrick.  On  its  arri- 
val the  conductor  left  the  train  to  attend  to  his  other  usual  duties 
at  the  station  while  this  switching  was  being  done,  the  head  brake- 
man  being  in  charge  of  the  switching  movements  of  the  train. 

W'hile  this  switching  was  going  on,  the  head  brakeman  being  on 
the  cars  and  the  other  brakeman  at  the  switch,  and  a  third  man  being 
necessary  (as  plaintiff  oft'ered  to  prove)  to  do  the  switching,  the 
head  brakeman,  seeing  plaintiff  standing  by,  requested  him  to  get 
onto  the  cars  and  assist.  The  plaintiff'  did  so,  and  while  thus  en- 
gaged sustained  the  injuries  complained  of,  caused,  as  is  claimed, 
by  reason  of  the  trucks  on  the  flat  car  not  being  properly  blocked. 

It  was  necessary  for  the  plaintiff  to  establish,  as  the  essential 

foundation  of  his  right  to  recover,  the  existence  of  the  relation  of 

^master  and  servant  between  himself  and  the  defendant  company, 

and  this  in  turn  depended  upon  the  authority  of  the  head  brakeman 

to  employ  him  to  assist  in  the  switching. 

In  our  opinion,  none  of  the  evidence  introduced  or  offered  had 
any  tendency  to  prove  any  such  relation  between  plaintiff  and  de- 
fendant, or  any  such  authority  on  the  part  of  the  head  brakeman. 
The  fact  that  plaintiff  had  been  or  was  in  the  employment  of  the 
defendant  elsewhere  is  wholly  unimportant.  He  was  not  at  the  sta- 
tion on  defendant's  business.  He  was  not  an  employee  of  defend- 
ant at  that  place  or  as  to  the  switching  of  that  wrecking  train.  The 
case  stands  precisely  as  if  the  head  brakeman  had  called  on  any  other 
bystander  at  the  station  to  assist.  Wliile  the  head  brakeman  had 
charge  of  the  movements  of  the  train  in  doing  this  switching  dur- 
ing the  temporary  absence  of  the  conductor  from  the  cars  on  other 
business,  yet  this  was  the  entire  scope  and  extent  of  his  authority. 
The  conductor  had  not  abdicated  the  general  charge   and  control 


CHTTRCH   V.  CHICAGO,    MILWAUKEE  &  ST.   PAUL  RY.   CO.  37 

of  the  train,  or  turned  it  over  to  the  brakeman.  The  latter  had  no 
authority,  actual  or  apparent,  express  or  implied,  either  from  custom 
or  from  any  present  pressing  emergency,  to  employ  additional  brake- 
men,  either  permanently  or  temporarily.  It  was  wholly  immaterial 
whether  two  brakemen  were  or  were  not  sufficient  to  do  the  switch- 
ing. Even  if  they  were  not,  that  fact  would  not,  under  the  circum- 
stances, give  a  mere  brakeman  authority  to  employ  an  additional 
force.  If  any  one  on  the  ground  had  any  implied  authority  to  do  so 
it  was  the  conductor,  who  had  charge  and  control  of  the  train.  In 
doing  what  he  did  the  plaintiff  was,  therefore,  a  mere  volunteer, 
and,  as  such,  assumed  all  the  risks  incident  to  the  position.  The  de- 
fendant did  not  bear  to  him  the  relation  of  master  or  employer,  and 
owed  him  no  duty  as  such.  Flozvcr  v.  Pennsylvania  Railroad  Co., 
69  Pa.  St.  210;  Sherman  v.  Hannibal  &  St.  J.  R.  Co.,  72  Mo.  62; 
Sparks  v.  East  Tennessee,  V.  &  G.  Ry.  Co.,  82  Ga.  156  (8  S.  E.  Rep. 
424)  ;  Everhart  v.  Terre  Haute  &  I.  Ry.  Co.,  78  Ind.  292 ;  Rhodes  v. 
Georgia  Railroad  &  Banking  Co.,  84  Ga.  320  (10  S.  E.  Rep.  922)  ; 
Atchison,  T.  &  S.  F.  R\.  Co.  v.  Lindley,  42  Kan.  714  (22  Pac.  Rep. 

703)-' 

Counsel  for  plaintiff  has  cited  no  case  which  sustains  his  con- 
tention in  this  case.  Many  of  those  which  he  cites  have  no  bearing 
whatever  upon  the  question  here  involved.  There  are  cases  which 
hold  that,  where  a  regular  brakeman  is  absent,  and  the  proper  and 
safe  management  of  the  train  so  requires,  the  conductor  in  charge 
has  authority  to  supply  the  place  of  the  absent  brakeman.  Such,  for 
example,  are  the  cases  of  Sloan  v.  Central  lozva  Ry.  Co.,  62  Iowa, 
728  (16  N.  W.  Rep.  331),  and  Georgia  Pac.  Ry.  Co.  v.  Probst.  83 
Ala.  518  (3  South  Rep.  764).-  And  if  any  sudden  or  unexpected 
emergency  should  arise,  such  that  the  safety  of  the  train  demanded 
an  extra  force  of  brakeAen,  probably  it  would  be  held  that  it  was 
within  the  implied  authority  of  the  conductor  to  employ  them.  lUit 
such  cases  are  clearly  distinguishable  from  the  present,  where  a  mere 
brakeman.  without  the  knowledge  of  and  without  authority  from  the 
conductor  in  charge  of  the  train,  and  in  the  absence  of  any  sudden 
emergency,  assumed  to  call  upon  a  bystander  to  assist  in  switching.^ 

Another  line  of  cases  cited  by  counsel  is  clearly  distinguish- 
able from  the  present  one.  They  are  those  where  one  assists 
the  servants  of  another  at  their  request  for  the  purpose  of 
expediting  his  own  business  or  that  of  his  master.  Such  is 
the  cases  of  Eason  v.  S.  &  E.  T.  Ry.  Co.,  65  Tex.  577.*  The 
case  of  Street  Ry.  Co.  v.  Bolton,  43  Ohio  St.  224  (i  N.  E.  Rep. 


^Accord:  Also  Evarts  v.  R.  R.,  56  Minn.  141  (1894),  p.  146.  semble; 
Mickelson  v.  R.  R..  23  Utah,  42  (1900);  Nashville,  etc.,  R.  R.  v.  McDaniels, 
12  Lea  (Tenn.),386  (1882). 

*That  it  was  physically  possible  to  operate  the  train  with  less  than  the 
full  crew,  as  shown  by  the  fact  that  it  had  been  safely  done  for  part  of  the 
journey,  is  not  decisive;  it  is  still  a  question  for  the  jury  whether  the  em- 
ployment of  temporary  assistance  was  necessary.  Fox  v.  R.  R.,  86  Iowa,  368 
(1892). 

'See  accord,  Little  v.  Neilson,  17  Dunlop  (Scotland),  310  (1855). 

*  See  ante,  p.  364. 


38  APrENDIX. 

S33),  is  also  referable  to  the  same  class.  See,  also,  Holmes  v.  North 
Eastern  Ry.  Co.,  L.  R.  4  Exch.  254,  affirmed  L.  R.  6  Exch.  123.  The 
decisions  in  this  class  of  cases  are  placed  upon  the  ground  that, 
though  performing  a  service  beneficial  to  both,  the  party  is  doing  so 
in  his  own  behalf,  and  not  as  the  servant  of  the  company,  and  is 
entitled  to  the  same  protection  against  its  negligence  as  if  attending 
to  his  own  private  affairs.  See,  also,  Thomp.  Neg.  1045,  and  cases 
cited. 

Neither  is  the  case  of  Johnson  v.  Ashland  Water  Co.,  71  Wis. 
553  (37  N-  W.  Rep.  823),  so  much  reHed  on  by  counsel,  particularly 
in  point.  The  question  there  arose  merely  on  demurrer  to  the  com- 
plaint, and  the  decision  is  merely  made  to  rest  upon  the  fact  that  the 
complaint  alleged  that  the  person  who  employed  the  plaintiff  to  as- 
sist was  at  the  time  the  superintendent  having  charge  and  control 
of  the  work.^ 

There  was  no  error  in  excluding  the  evidence  offered  by  plain- 
tiff, and  consequently  the  order  appealed  from  must  be  affirmed.'' 


■''  "The  plaintiff  was  engaged  in  the  defendant's  work  at  the  request  of  the 
man  in  charge  of  the  work ;  and,  although  it  may  be  said  that  his  employ- 
ment was  for  a  mere  temporary  purpose,  and  that  the  plaintiff  was  not 
expecting  any  pay  for  the  work  done,  and  in  that  sense  the  employment  was 
voluntary,  still,  being  in  the  defendant's  employment  at  the  request  of  its 
servant  or  foreman,  he  was  not  a  trespasser,  and  he  was,  for  the  time  being, 
the  servant  of  the  defendant  and  entitled  to  the  same  protection  as  any 
other  servant  of  the  defendant."  Taylor,  J.,  71  Wis.,  p.  556. 

*The  defendant's  liability  depends  in  each  case  upon  whether  his  em- 
ployee, who  either  requested  the  plaintiff's  assistance  or  accepted  the  latter's 
services,  offered  by  him  unasked  (it  is  immaterial  which,  Thayer,  J.,  Central 
Trust  Co.  v.  R.  R..  32  Fed.  349  [1887],  p.  451,  as  to  what  constitutes  accept- 
ance by  acquiescence,  see  Mickelson  v.  R.  R.,  supra),  has  by  virtue  of  his 
rank  and  position,  the  nature  of  work  entrusted  to  him,  or  by  reason  of 
some  sudden  emergency,  authority,  express  or  implied,  to  employ,  under  the 
circumstances  of  the  particular  case,  temporary  assistance,  paid  or  gratuitous. 

A  superintendent,  or  other  superior  employee,  to  whom  is  entrusted  the 
selection  of  servants,  has  clearly  authority  to  employ  temporary  assistance  to 
fill  a  vacancy  due  to  the  absence  of  one  of  the  regular  staff,  Button  v.  R.  R., 
87  Wis.  63  (1894),  and  if  entrusted  with  complete  control  of  the  business 
he  has  authority  to  temporarily  increase  at  his  discretion  the  staff  of  work- 
men by  enlisting  the  plaintiff's  services.  Central  Trust  Co.  v.  R.  R.,  supra; 
Consolidated  Co.  v.  Bruce,  154  111.  454  (1894)  ;  Johnson  v.  Ashland,  cited  in 
principal  case. 

If  a  piece  of  workhas  been  left  to  a  servant,  who  has  full  discretion 
how  to  perform  it,  he  is  ordinarily  held  to  have  authority  to  employ  such 
assistance,  temporary  or  permanent,  as  he  may  require.  Penna.  Co.  v.  Gal- 
lagher, 40  Ohio  St.  637  (1884),  especially  if  the  work  is  such  that  he  cannot 
reasonably  be  expected  to  do  it  without  aid,  Patnode  v.  Warren  Mills  Co.. 
157  Mass.  283  (1887).  So.  when  a  mill  operative  or  miner  is  paid  by  the 
piece  or  the  tonnage  mined,  and  the  work  requires  assistance,  and  is  done 
in  the  mill  or  mine,  the  relation  of  master  and  servant  is  held  to  exist  be- 
tween the  mill  or  mine  owner  and  the  assistants,  thousfh  selected  and  em- 
ployed bv  the  operatives  or  miners  and  paid  bv  them.  Rummell  v.  Dihvorth. 
Ill  Pa.  343   (t886). 

While  the  master  is  clearly  not  liable  when  one  of  his  servants,  of 
whatsoever  grade,  obtains  outside  assistance  to  lighten  his  own  labor  or 
that  of  his  subordinates,  and  purely  for  his  or  their  personal  convenience 
and  relief.  Nasln'ille.  etc.,  R.  R.  v.  McDaniel  suf^ra:  Sl^arks  v.  R.  R..  82 
Ga.  y6  (1888)  :  Atchison,  etc.,  R.  R.  v.  Lindley.  42  Kans.  714  (1889),  it  is  oiften 
a   difficult   question   of    fact   whether   the   plaintiff's    services   were   requested 


FARMKK   Z\    KKAKXKV.  39 

FARMER  v.  KEARNEY. 
Supreme    Court    of    Louisiana,    1905.      115    Louisiana,    722. 

Appeal  from  Civil  District  Court,  Parish  of  Orleans.  Judg- 
ment for  defendant,  and  plaintilt  appeals. 

NiCHOLLs,  J.:  The  plaintiff  in  this  suit  was  severely  injured 
while  engaged  as  a  screwman.  loading  cotton  in  the  hold  of  the 
steamship  Chancellor.  The  injury  was  caused  by  the  falling  into 
an  open  hatchway  of  a  bale  of  cotton  which  was  being  loaded  into 
the  vessel.  He  was  not  in  a  position  to  see  or  know  exactly  how 
or  through  whose  instrumentality  the  bales  fell,  but  he  charges 
that  the  cotton  was  loaded  into  the  ship  ,by  means  of  a  derrick 
and  appliances  connected  with  the  same ;  that  the  bale  which 
struck  him  was  one  of  two  bales  which  were  not  well  fastened 
and  secure  in  the  sling  attached  to  the  derrick,  and  that  the  par- 
ties operating  the  derrick  and  its  appliances  operated  the  same  in 
too  great  haste  while  lowering  them  into  the  hold  of  the  ship; 
that  the  bight  of  the  sling  that  took  hold  of  the  cotton  and  low- 
ered it  into  the  hold  was  entirely  too  long,  and  the  bale  which 
struck  him  was  loosened  and  fell  out  of  the  sling.  .He  alleges  that 
defendant  was  the  stevedore  employed  to  load  the  vessel  (at 
the  time  of  the  injury  received  by  him),  in  charge  of  the  gang 
operating  the  derrick  from  which  the  bale  of  cotton  fell  which 
injured  him;  that  the  stevedore,  Kearney,  his  agents,  servants, 
and  employes  operating  the  derrick  and  its  appliances,  were 
guilty  in  so  operating  them  of  gross  negligence  and  fault,  want  of 
due  care  and  ordinary  skill. 

The  case  is  submitted  to  us  with  a  claim  to  liability  on  the 
part  of  the  defendant  as  an  employer  ifnder  circumstances  very 
exceptional  in  character. 

In  the  brief  filed  on  behalf  of  the  defendant,  his  counsel  say: 

"It  is  evident  that  the  commerce  of  the  port  of  New  Orleans 
is  handled  by  two  associations— the  Longshoremen's  Benevolent 
\ssociation,  which  handles  cotton  up  to  the  time  that  the  slmg 
is  attached  to  the  hoist,  and  the  Screwmen's  Association,  which 
handles  it  from  that  time  until  it  reaches  the  hold  of  the  ship. 

"These  two  associations  control  absolutely  the  commerce  of 
the  port  forming  together  what  is  known  as  the  'Dock  and  Cot- 
ton Council,'  and  enforcing  the  rules  of  this  council  by  boycott  or 
strike  The  Screwmen's  Association  refuses  to  take  cotton  from 
anybody  but  members  of  the  Longshoremen's  Association,  and 
the  Longshoremen's  Association  refuses  to  deliver  the  cotton  to 
anybody  but  members  of  the  Screwmen's  Association. 

for  the  servant's  convenience,  or  because  they  vyere  necessary  for  the  proper 
conduct  of  the  master's  business,  see  R.  R.v.  Harrrson  4^  M.ss.  "2  (  873  . 
As  to  whether  a  plaintiff  injured  on  the  defendant's  premises  while  as- 
sisting the  defendant's  servants  solely  for  the  latter's  convenience  can  re- 
Tover^or  injuries  due  to  the  reckless  -'f  °"^"^;  ^^  "^.Y^;,:;,;?^",  VV^' 
defendant,  who  knew  of  his  presence  and  danger  f^ee  Ea../  KcutuckyR.R^v. 
Pozvell,  ante,  p.  216).  compare  Mitchell,  J  in  Eva,ts  v,^-  ^.  g*  jj^'"". 
141   (1894).  with  Bramwell,  B.,  in  Degg  v.  Midland  Ry.  Co.,  i  H.  &  N.  773 

(1857). 


40 


APPEXniX. 


"The  stevedore  does  not.  and  is  not  allowed  to,  come  in  con- 
tact with  the  individual.  lie  cannot  employ  the  individual  but 
must  employ  an  entire  gang,  which  is  made  up  of  members  of  this 
association  among  themselves,  and  to  which  they  designate  one  of 
themselves  as  foreman.  These  screwmen  are  supreme  aboard 
ship.  They  handle  the  cotton  from  the  moment  the  sling  is  at- 
tached to  the  hoist.  One  of  the  rights  which  they  demand  is  that 
one  of  the  gang  must  operate  the  winch.  They  themselves  select 
the  man  who  is  to  operate  the  winch.  The  stevedore  is  not 
allowed  any  choice  in  the  matter,  and  on  the  day  of  the  accident 
the  screwman  and  the  members  of  the  gang  in  which  plaintiff 
worked,  designated  'Tony,'  one  of  their  gang,  to  operate  the  winch. 
"Every  witness  in  this  case,  including  the  plaintiff  himself, 
has  testified  that  the  stevedore  is  not  allowed  any  choice  in  the 
selection  of  the  winchman,  and  if,  on  the  day  in  question,  the 
defendant  had  put  the  most  expert  machinist  to  operate  this  winch, 
all  of  the  screwmen  would  have  left  the  work,  and  would  have  de- 
clined to  return  to  work  until  one  of  their  number  had  been  rein- 
stated at  the  winch." 

The  plaintiff  and  his  fellow  workmen  were  engaged  in  load- 
ing cotton  from  the  wharf  into  the  hold  of  the  ship.  The  opera- 
tion consists  in  hoisting  the  cotton  from  the  wharf  by  means  of  a 
steam  winch  and  lowering  it  into  the  hold,  where  it  is  stored.  This 
work  is  subdivided  by  the  arbitrary  regulation  of  a  certain  ele- 
ment of  labor  in  the  city  of  New  Orleans.  The  cotton  is  handled 
on  the  wharf  and  the  rope  attached  to  the  hoisting  gear  by  a  class 
of  men  called  "Longshoremen."  The  hoisting  gear  is  operated 
and  the  cotton  detached  therefrom  and  stored  by  a  class  of  men 
called  "Screwmen."  Under  the  regulations  which  these  labor  as- 
sociations have  established,  and  as  conditions  imposed  by  them, 
the  longshoremen  will  not  handle  the  cotton  that  is  not  hoisted 
and  stored  by  screwmen,  and  the  screwmen  will  not  hoist  and 
store  cotton  that  is  not  handled  by  the  longshoremen.  Whatever, 
therefore,  may  be  the  particular  work  that  these  respective  labor- 
ers may  be  assigned  to,  it  is  evident  they  are  engaged  in  the  com- 
mon work  and  undertaking  of  loading  cotton  from  the  wharf 
into  the  hold  of  the  ship.  The  man  operating  the  winch  was 
a  screwman,  and  belonged  to  the  same  gang  as  the  plaintiff.  The 
hoisting  of  the  cotton  by  means  of  the  steam  winch  and  lowering 
it  into  the  hold,  where  it  is  detached  and  placed  in  position,  is  a 
common  work  or  undertaking.  It  is  evidently  considered  such 
by  the  screwmen  themselves,  for  the  reason  that  in  the  gangs 
which  they  make  up  to  do  this  work  they  always  include  and  require 
the  master  to  employ  one  of  their  men  to  operate  the  steam  winch. 
On  the  occasion  of  this  injury  the  steam  winch  was  operated  by  one 
of  plaintiff's  fellow  gans-men  or  workers.^ 

The  evidence  establishes  that,  while  the  longshoremen's  organ- 
ization and  the  screwmen's  organization  are  distinct  and  separate 


'  A  portion  of  the  opinion  is  omitted  containing,  inter  alia,  excerpts  from 
the  defendant's  testimony  proving  the  existence  of  substantially  the  condi- 
tions set  forth  in  his  counsel's  brief. 


FARMER  t'.    KEARNEY.  4I 

associations,  they  none  the  less,  by  some  kind  of  an  agreement 
made  between  themselves,  act  in  concert  as  to  working  or  refusing 
to  work.  The  violation  by  a  stevedore  of  the  rules  and  regulations 
of  one  of  the  two  associations  is  practically  and  substantially  acted 
upon  as  a  violation  of  the  rules  and  regulations  of  the  other. 

When  a  person  contracting  for  work  which  he  engaged  to 
do  needs  a  number  of  workmen  to  perform  the  same,  the  indi- 
vidual workmen  employed  rely  upon  the  contractor's  having  and 
exercising  proper  knowledge,  skill  and  prudence  in  the  selection 
of  the  w^orkmen  other  than  themselves ;  that  he  will  see  to  it 
that  they  each  have  proper  knowledge,  skill  and  prudence.  They 
rely,  also, 'upon  his  exercising  himself  (or  through  some  one  whom 
he  selects  to  represent  him)  due  care,  knowledge,  and  prudence  jn 
superintending  the  workmen  as  they  work ;  that  he  will  see  that 
they  perform  their  work  properly.  The  workmen  may,  however, 
elect  in  any  particular  case,  as  betw^een  themselves  and  the  con- 
tractor, to  relieve  the  latter  from  these  duties  and  obligations,  and 
the  responsibility  resulting  from  their  nonperformance,  by  select- 
ing agencies  of  their  owni  choice,  to  which  they  look  for  their  own 
proper  protection,  and  which  they  substitute  for  that  purpose  for 
the  contractor.  The  responsibility  of  the  contractor  rests  upon 
freedom  of  action  in  the  selection  of  the  workmen  and  in  his  su- 
perintendence over  them.  When  the  individual  workmen,  instead 
of  allowing  matters  to  take  their  usual  shape  and  course,  make 
it  a  condition  of  their  consent  to  accepting  service  that  he  (the 
contractor)  will  yield  in  their  favor  this  right  of  freedom  of  action 
as  to  selection  and  superintendence,  they  absolve  him  from  respon- 
sibility which  would  otherwise  be  thro*vn  upon  him  and  look 
to  that  of  their  own  seltcted  agencies.  When  the  workmen  dele- 
gate to  a  labor  organization  which  they  have  joined  (and  to  others 
in  privity  with  their  own  organization)  the  right  of  selection  and 
superintendence,  they  agree  to  accept  the  membership  of  their 
fellow  workmen  in  those  organizations,  and  the  action  of  those 
associations,  ipso  facto,  as  a  good  and  sufficient  guaranty  to  them 
for  their  individual  safety  and  protection,  so  far  as  the  contractor 
is  concerned.  If  they  deem  membership  in  organizations  as  con- 
ferring benefits  upon  them,  they  cannot  accept  the  benefits  and 
repudiate  the  resulting  legal  disadvantages. 

For  the  reasons  assigned  herein,  it  is  hereby  ordered  and  de- 
creed that  the  judgment  appealed  from  be,  and  it  is  hereby,  af- 
firmed.- 


"So  it  has  been  held  in  Pennsylvania  and  West  Virginia  that  where  an 
act  of  the  legislature  requires  every  mine  owner  who  desires  to  operate  his 
mine  to  employ  a  mine  foreman  who  shall  have  been  examined  by  a  state 
mining  board  and  received  from  it  a  certificate  of  competency,  and  imposes 
upon  such  foremen  certain  specified  duties,  among  which  is  that  of  making 
periodical  inspections  of  the  working  places  and  of  seeing  that  they  are  in 
safe  condition — the  mine  owner  is  not  liable  to  a  servant  injured  by  the 
fall  of  the  roof  of  the  gallery  or  drift  where  he  was  working  due  to  the 
failure  of  the  mine  boss  to  perform  his  statutory  duty — the  foreman  repre- 
senting the  state  which  requires  the  owner  to  employ  him  or  some  other 
of  the  limited  class  of  certified  foremen,  Reese  v.  Biddle,  112  Pa.  79  (1886)  ; 


42  APPENDIX. 


McELLIGOTT,    AD.AITX.,   v.   RANDOLPH   ET  AL. 

Supreme  Court  of  Errors,   1891.     61   Connecticut  Reps.   157. 

Prextice,  J. :  The  plaintiff's  intestate  was  in  the  employ  of 
the  defendants,  and  while  so  employed  was  accidentally  killed. 
He  left  a  widow,  three  minor  children,  and  one  child  in  ventre  sa 
mere.  The  complainant  alleges  that  the  intestate's  death  was  caused 
by  the  defendants'  negligence,  and  claims  damages  laid  at  $5,000. 
The  defendants  having  suft'ered  a  default,  the  damages  were  as- 
sessed by  the  court,  and  $1,000  awarded.     Both  parties  appeal.^ 

The  deceased  was  one  of  two  hundred  factory  operatives  em- 
ployed by  the  defendants.  In  the  wheel-pit  of  the  defendants'  fac- 
tory was  a  large  gear  wheel,  weighing  upwards  of  twelve  tons,  which 
it  was  desired  to  remove.  The  work  was  one  of  some  difficulty  and 
required  the  exercise  of  mechanical  skill.  It  was  by  the  defendants 
entrusted  to  one  Dunning,  who  was  the  master-mechanic  of  the 
factory  and  a  capable  machinist.  For  the  performance  of  the  work 
he  selected  from  the  defendants'  hands  ten  men,  the  best  adapted 
for  the  work.  These  men  were  not  skilled  or  trained  in  mechanical 
work.  With  competent  instructions,  oversight  and  direction,  how- 
ever, they  were  competent  to  perform  the  work.  Otherwise  thev 
were  incompetent.  Among  these  ten  men  was  McElligott.  In  order 
that  the  removal  of  the  wheel  might  interfere  as  little  as  possible  with 


Williams  v.  Thacker  Coal  Co.,  44  W.  Va.  599  (1898)  ;  and  a  provision  in 
such  an  act  that  the  owner  shall  be  liable  for  foreman's  neglect  to  perform 
his  statutory  duties  is  unconstitutional  and  void,  Durkin  v.  Kingston  Coal  Co., 
171  Pa.  193  (1895)  ;  Hall  v.  Simpson,  203  Pa.  146  (1902). 

On  the  contrary,  a  very  similar  Illinois  statute,  differing  only  in  this 
that  it  did  not  require  the  owner  to  employ  certified  foremen,  etc.,  but 
forbade  the  employment  of  any  not  so  certified,  was  held  to  make  the  owner 
liable  for  the  failure  of  such  foreman  to  properly  perform  his  duty  and  to 
be  constitutional.  "In  legal  effect,  duties  are  imposed  upon  the  mine  owner, 
customarily  performed  for  him  by  certain  employees,  duties  which  substan- 
tially relate  to  the  furnishing  of  a  reasonably  safe  place  for  the  workmen. 
The  subject  w-as  one  peculiarly  within  the  police  power  of  the  State,"  and 
"though  the  liability  imposed  upon  the  mine  owner  to  respond  in  damages 
for  the  willful  failure  of  the  mine  manager  *  *  *  to  comply  with  the 
requirements  of  the  statute  was  not  in  harmony  with  the  principles  of  the 
common  law  applicable  to  the  relation  of  master  and  servant,  it  (is)  com- 
petent for  the  State  to  change  and  modify  those  principles  in  accordance 
with  its  conceptions  of  public  policy,"  and  it  not  being  "obligatory  upon  a 
mine  owner  to  select  a  particular  individual  or  to  retain  one  when  selected 
if  found  incompetent"  [the  object  being  merely  to  guard  against  the  possibility 
of  the  proprietor  employing  incomoetent,  intemperate,  negligent  or  disreputable 
persons,  Henrietta  Coal  Co.  v.  Martin,  221  111.  460  (1906).  p.  467],  "the  act 
is  not  repugnant  to  the  Fourteenth  Amendment  in  any  particular."  White,  J.. 
Wilmington,  etc..  Co.  v.  Fulton,  20.^  U.  S.  60  C1907),  pp.  72>  and  74 — and  see 
same  case  in  Circuit  Court  of  Appeals,  133  Fed.  1903  (1904)  and  Illinois 
cases  cited  therein. 

In  Pennsylvania  the  owner,  though  not  liable  for  the  negligence  of  a 
mine  foreman,  is  liable  if  he  fail  to  supply  him  with  proper  materials  and 
supplies  for  the  performance  of  his  duties.  Savior  v.  Coal  Co.,  31  Pa.  T.  C 
447   (1906). 

*That  portion  dismissing  the  plaintiff's  appeal,  based  on  an  alleged  error 
in  the  assessment  of  damages,  is  omitted 


M  ELLiGOTT,   ADMTX.   V.    RANDOLPH,    ET   AL.  43 

tiie  operation  of  the  factory,  the  work  was  performed  during  the 
night.  The  wheel  was  made  up  of  ten  sections.  These  sections  were 
removed  independently.  About  midnight,  some  of  the  sections  hav- 
ing been  removed,  Dunning  was  induced  by  the  entreaties  of  his 
little  boy,  who  was  present,  to  go  home.  The  work  grew  more  diffi- 
cult as  the  removal  progressed.  By  the  removal  of  the  fifth  sec- 
tion. Dunning  having  then  left,  the  wheel  was  put  out  of  gear  with 
the  gear  wheel  on  the  engine  shaft,  and  it  became  necessary  to  sup- 
port it.  Dunning  had  foreseen  this  contingency,  and  had  given 
instructions  for  the  use  of  a  certain  wooden  horse  for  the  suspension 
of  a  set  of  blocks  and  falls  for  the  purpose  of  supporting  and  holding 
in  place  the  remaining  sections  of  the  wheel  when  it  should  become 
out  of  gear.  After  Dunning's  departure,  one  Johnson  was  regarded 
as  the  foreman  of  the  work.  He,  like  his  fellows,  was  withcnit 
mechanical  training  or' skill. 

When  support  for  the  wheel  became  necessary,  one  of  the  work- 
men attached  the  horse  and  falls  and  blocked  it  up  from  beneath, 
getting  ropes  and  materials  from  the  defendants'  stock,  near  at  hand, 
and  containing  a  sufficiency  of  suitable  material  as  well  as  other 
material  insufficient  and  unsuitable.  Neither  the  rope  nor  the 
material  used  for  blocking,  nor  their  adjustment  was  ever  examined 
by  anyone.  After  this  was  done,  the  deceased  was  sitting  upon  the 
hub  of  the  wheel  engaged  in  his  work  when  the  rope  and  horse  gave 
way  and  the  wheel  fell  into  the  pit  killing  him.- 


*The  statement  of  facts  is  slightly  condensed  from  that  given  in  the 
opinion. 

The  master,  whether  acting  in  person  or  through  a  subordinate,  is  bound 
to  act  only  as  a  reasonably  prudent  man  having' due  regard  for  his  servant's 
safety  would  act  under  th«  circumstances  of  each  particular  case.  He  is 
not  bound  to  take  minute  precautions  incompatible  with  the  efficient  and 
profitable  conduct  of  his  business,  in  order  to  guard  his  employees  against 
merely  possible  dangers.  Shea  v.  IVellington,  163  Mass.  364  (1895),  p.  360: 
nor  is  he  liable  for  a  failure  of  his  representative  to  do  that  which  it  would 
be  unreasonable  to  require  the  master  to  do,  if  present  and  himself  directing 
the  operation  of  the  work.  Compare  O'Neill  v.  R.  R.,  80  Minn.  27  (1900)  and 
King  v.  McClure,  222  Pa.  625  (iQog),  where  it  was  held  that  "there  is  no 
rule  of  law  which  requires  a  master,  by  himself  or  his  representative,  to  be 
always  present  to  ward  off  every  transient  peril,"  with  JVhitley  v.  Erans.  ^o 
Pa.  S.  C.  41  (1906),  p.  46.  where  the  master  was  personally  superintending 
the  moving  of  heavy  machinery.  So  it  is  generally  held  that  a  master  dis- 
charges his  duty  to  furnish  safe  appliances  by  purchasing  them  from  experi- 
enced and  reputable  manufacturers  and  by  subjecting  them  to  such  inspectiou 
as  the  nature  of  the  article  admits  of.  Norton  v.  R.  R.,  81  Mich.  423  (1890)  : 
Richmond,  etc.,  R.  R.  v.  Elliott.  T49  U.  S.  266  (1893)  ;  Ardcsco  Co.  v.  Gilson, 
63  Pa.  143  (1869),  semhle:  McEnery  v.  R.  R..  91  Pa.  185  (1879),  carries  this 
rule  to  a  point  seemingly  in  conflict  with  the  late  decisions  of  the  same  court, 
holding  that  a  carpenter  and  bridge  builder  was  an  independent  contractor, 
though  employed  by  the  day  and  working  under  the  direction  and  control 
of  the  defendant's  superintendent. 

There  are  dicta  in  some  cases  contra:  Burnc;  v.  R.  R..  129  Mo.  41  (189^)  ; 
Herdler  v.  Buck  Stove  Co.,  137  Mo.  3  ('1896')  :  Morton  v.  Barr  Dry  Good.';  Co.. 
T26  Mo.  App.  "377  (1907).  but  see  pp.  387  to  389:  Toledo  Breiving  Co.  v.  Bosch. 
lOi  Fed.  530  (C.  C.  A.  6lh  Circ,  1900)  ;  but  the  actual  decisions  go  no  fur- 
ther than  to  hold"  that  a  master  cannot  trust  implicitly  to  the  competence  and 
care  of  his  contractor,  but  must  make  an  independent  inspection  of  the 
safety  of  the  appliances    furnished   to  his   servants   or  the   place  where  he 


44  APPENDIX. 

The  cause  of  the  accident  was,  in  the  language  of  the  finding, 
"the  inadequacy  of  the  support,  the  rope  being  insufficient  in  size 
and  strength  for  the  strain  upon  it,  and  the  support  by  which  tho 
wheel  was  blocked  being  also  inadequate,  improperly  placed  to  sus- 
tain the  weight  to  which  it  was  adapted,  and  the  whole  arrange- 
ment and  device  was  in  the  highest  degree  unsuitable  and  insecure 
in  view  of  the  weight  to  be  supported  and  the  extreme  hazard 
involved."  Upon  these  facts  the  defendants  claim  that  they  had 
performed  their  whole  duty  in  the  premises  in  that  they  had  provided 
competent  and  suitable  persons  to  oversee,  direct  and  do  the  work, 
and  also  suitable  and  sufficient  appliances,  tools  and  materials 
therefor. 

The  rule  of  duty  of  master  to  servant  is  well  settled  in  this 
State.  It  is  the  master's  duty  to  exercise  reasonable  care  to  provide 
for  his  servant  a  reasonably  safe  place  in  which  to  work,  reasonably 
safe  appliances  and  instrumentalities  for  his  work,  and  fit  and 
competent  persons  as  his  co-laborers.  It  is  equally  well  settled  that 
performance  of  these  duties  cannot  be  effected  by  the  simple  giving 
of  an  order, — by  their  execution  being  entrusted  to  another.  The 
designation  of  an  agent,  however  fit  and  competent  that  agent  may 
be,  for  the  execution  of  the  master's  duties,  does  not  fill  out  the 
sum  of  the  master's  obligation,  nor  serve  to  relieve  the  master  from 
further  responsibility.  Until  the  agent  thus  selected  and  empowered 
in  fact  acts  up  to  the  limit  of  the  duty  of  his  master  to  act,  the 
master's  duty  is  not  done.  The  master's  duty  requires  performance. 
He  may  at  his  option  perform  in  person  or  delegate  performance  to 
another.  In  either  case  reasonable  care  must  be  exercised  in  the 
doing  of  the  act  required  to  be  done  by  the  master.  Wilson  v.  IVilli- 
mantic  Linen  Co.,  50  Conn.  433  ;  Laning  v.  N.  York  Central  R.  R. 
Co.,  49  N.  York,  521  ;  Hough  v.  Texas  &  Pacific  Raihuay  Co.,  100  U. 
S.  R.,  213;  Davis  v.  Central  Vermont  R.  R.  Co.,  55  Verm.,  84;  Ford 
v.  Fitchbiirg  R.  R.  Co.,  no  Mass.,  240;  Harper  v.  Indianapolis  & 
St.  Louis  R.  R.  Co.,  47  Mo.  353 ;  Brodeur  v.  Valley  Falls  Co.,  16  R. 
Isl.,  448 ;  Chicago  &  N.  Western  R.  R.  Co.  v.  Jackson,  55  111.  492. 

Examining  the  facts  of  the  case  with  reference  to  these  legal 
principles,  we  observe  that  while  it  is  true  that  the  defendants 
entrusted  the  execution  of  the  work  upon  which  McElligott  was 
engaged  to  a  competent  superintendent,  provided  him,  McElligott, 
with  co-laborers  who  were  fit  and  competent  when  under  compe- 
tent supervision,  and  had  upon  the  premises  appliances  and  appa- 
ratus suitable  for  the  work,  it  is  equally  true  that,  during  the  progress 
of  much  of  the  work,  and  at  the  time  of  and  for  a  considerable  time 
prior  to  the  accident,  the  work  was  wholly  without  competent 
superintendence,  that  there  was  even  no  one  present  who  was  pos- 


puts  them  to  work.  Moran  v.  Corliss  Co.,  21  R.  I.  386  (1899)  ;  G.  C.  R.  R. 
V.  Delaney,  22  Tex.  Civ.  App.  427  (1900)  ;  Vickers  v.  K.  &  W.  V.  R.  R.,  64 
W.  Va.  474  (1908),  20  L.  R.  A.  N.  S.  793,  with  note.  Contra.  N.  &  IV.  R.  R. 
V.  Steveus,  97  Va.  632  (1899).  So  in  Story  v.  R.  R.,  70  N.  H.  364  (1900), 
a  railroad  company  was  held  liable  for  the  condition  of  the  tracks  of  another 
company  over  which  they  had  running  rights ;  cf.  Hoody  v.  R.  R.,  123  N.  W. 
815   (Minn..   1909). 


M  ELLIGOTT,    AD.MTX.    T'.    KA  X!  )()L1'II,    KT    AL.  45 

sessed  of  mechanical  skill,  that  the  provision  of  suitable  appliances 
was  simply  in  the  sense  of  there  being  such  near  at  hand  mingled 
with  others  unsuitable,  that  those  appliances  which  were  in  fact 
chosen  and  set  apart  for  the  work  were  mainly  selected  by  unskilled 
factory  hands,  at  random  and  without  instructions,  oversight  or 
examination,  and  that  they  were  adjusted  by  like  laborers  with  the 
like  absence  of  instructions,  oversight  and  examination. 

The  accident  happened  in  part  because  a  certain  wooden  horse 
or  support  was  inadequate.  Dunning,  the  superintendent,  selected 
this  particular  appliance  and  directed  its  use.  The  wheel  fell  in  fact 
because  a  certain  rope  was  too  small  and  madequate.  The  defend- 
ants had  done  nothing  to  provide  a  suitable  rope  except  to  have  upon 
the  premises  a  stock  of  various  kinds  of  rope,  some  suited  to  one 
purpose  and  some  to  another,  and  to  allow  any  chance  inexperienced 
laborer  'to  select  for  each  special  use  the  one  which  his  impulse  dic- 
tated. Just  here  we  touch  upon  the  most  significant  and  potent 
factor  in  the  situation,  namely,  the  entire  absence  of  competent 
superintendence  during  all  the  later  stages  of  the  work.  After 
Dunning's  departure  about  midnight  there  was  no  one,  either  over 
or  connected  with  the  gang  of  men  employed,  who  possessed  any 
mechanical  knowledge  or  skill.  Had  Dunning  remained  present 
properly  executing  his  master's  duty  entrusted  to  him,  there  would 
have  been  no  such  unintelligent,  haphazard  selection  of  apparatus, 
no  such  inadequate  and  unsuitable  devices  of  support,  as  were  instru- 
mental in  AIcElligott's  death.  Moreover,  Dunning's  departure  in 
an  instant  transformed  McElligott  and  his  fellows  from  fit  into 
unfit  co-laborers.  The  finding  states  explicitly  that  these  men  were 
incompetent  for  the  work  assigned  them  ^without  suitable  supervi- 
sion. During  the  hours  ijierefore  which  succeeded  Dunning's  return 
home,  McElligott  was  surrounded  only  by  incompetent  fellow-work- 
men, and  he  went  down  to  his  death  in  consequence  of  constructions 
and  mechanical  adjustments  made  by  his  fellow-servants  employed 
by  the  defendants  to  do,  in  company  with  him,  what  they  were  unfit 
to  do.  Plainly,  therefore,  the  defendants'  duties  as  masters  of  the 
deceased  were  not  performed. 

The  defendants'  counsel  in  their  brief  urge  that,  as  their 
clients  had  entrusted  the  execution  of  the  work  to  a  competent  agent, 
they  were  relieved  from  further  responsibility.  This  position,  as 
we'have  already  indicated,  is  not  well  taken. 

The  true  rule  makes  the  character  of  the  act  or  omission  wherein 
the  negligence  exists,  the  test  of  the  master's  responsibility  therefor. 
One  may  in  some  of  his  acts  be  executing  his  master's  duty  towards 
the  master's  servants,  while  in  others  of  his  acts  he  is  simply  a 
fellow-servant,  of  the  same  or  of  a  higher  or  lower  grade.  The 
master's  responsibility  or  non-responsibility  in  case  of  injury  is  de- 
termined, not  by  the  rank  or  grade  of  the  ofifending  servant,  but  by 
the  character  of  the  particular  act  or  omission  to  which  the  injury 
i'^  attributabk.  7  Am.  &  Eng.  Encyclopedia  of  Law,  §§  824,  834; 
Wood's  Master  &  Servant,  871,  §  438 :  ^aris  v.  Central  Vermont  R. 
R.  Co.,  55  Verm.,  84;  and  the  other  cases  last  cited. 

There  was  no  error  in  the  judgment  complained  of. 


46  APPi:.\i)ix. 

(a)  Duty  to  Superintend  and  Issue  Commands. 


CRISPIN  V.  BENJAMIN  T.  BABBITT. 
Court  of  Appeals  of  New  York,  1880.    8r  N.  Y.  516. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  fourth  judicial  department,  affirming  a  judgment  in 
favor  of  plaintiff,  entered  upon  a  verdict,  and  affirming  an  order 
denying  a  motion  for  a  new  trial. 

This  action  was  brought  to  recover  damages  for  injuries  al- 
leged to  have  been  sustained  by  defendant's  negligence. 

The  plaintiff  was  working  as  a  laborer  in  the  defendant's  iron 
works.  It  became  necessary  to  pump  the  water  out  of  a  dry  dock; 
this  was  done  by  means  of  a  pump  driven  by  an  engine.  While  the 
plaintiff  was,  with  others,  engaged  in  lifting  the  fly  wheel  of  the 
engine  off  its  center,  one  John  Babbitt  carelessly  started  the  engine, 
thereby  causing  the  plaintiff's  injuries.  Defendant,  who  lived  at  a 
distance  from  his  works,  visited  them  only  one  or  two  days  every 
month  and  left  the  general  charge  of  them  to  Babbitt,  who  was  at 
one  time  general  superintendent  and  manager  and  at  another  time 
styled  "business  and  financial  man."  ^ 

Rapallo,  J. :  The  liability  of  a  master  to  his  servant  for  in- 
juries sustained  while  in  his  employ,  by  the  wrongful  or  negligent 
act  of  another  employe  of  the  same  master,  does  not  depend  upon 
the  doctrine  of  respondeat  superior. 

If  the  employe  whose  negligence  causes  the  injury  is  a  fellow- 
servant  of  the  one  injured,  the  doctrine  does  not  apply.  {Conzvay  v. 
Belfast,  etc.,  Ry.  Co.,  11  Irish  C.  L.  353.) 

A  servant  assumes  all  risk  of  injuries  incident  to  and  occurring 
in  the  course  of  his  employment,  except  such  as  are  the  result  of  the 
act  of  the  master  himself,  or  of  a  breach  by  the  master  of  some 
term,  either  express  or  implied,  of  the  contract  of  service,  or  of  the 
duty  of  the  master  to  his  servant,  viz. :  to  employ  competent  fellow- 
servants,  safe  machinery,  etc.  But  for  the  mere  negligence  of  one 
employe,  the  master  is  not  responsible  to  another  engaged  in  the 
same  general  service. 

The  liability  of  the  master  does  not  depend  upon  the  grade  or 
rank  of  the  emplove  whose  negligence  causes  the  injury.  A  su- 
perintendent of  a  factory,  although  having  power  to  employ  men, 
or  represent  the  master  in  other  respects,  is,  in  the  management 
of  the  machinery,  a  fellow-servant  of  the  other  operatives.  (Albro 
V.  Agazvam  Canal  Co.,  6  Cush.  75;  Conway  v.  Belfast  Ry  Co 
supra;  Wood's  Master  and  Servant,  §  438.  See,  also,  §§  431,  436. 
437.)  On  the  same  principle,  however  low  the  grade  or  rank  of 
the  employe,  the  master  is  liable  for  injuries  caused  by  him  to  an- 

'  The  facts  are  substantially  those  given  by  the  reporter  The  substance 
of  the  evidence,  as  to  the  position  occupied  b.v  Babbitt  and  the  particulars 
as  to  the  accident,  are  fully  set  forth  in  the  dissenting  opinion  of  tarl,  J., 
which  is  omitted. 


CRISPIN   V.   BENJAMIN    T.    liABBITT.  47 

other  servant,  if  they  resuh  from  the  omission  of  some  duty  of 
the  master,  which  he  has  confided  to  such  inferior  employe.  On 
this  principle  the  Flike  case  (53  N.  Y.  549)  was  decided.  Church, 
Ch.  J.,  says,  at  page  553 :  "The  true  rule,  I  apprehend,  is  to  hold 
the  corporation  liable  for  negligence  in  respect  to  such  acts  and 
duties  as  it  is  required  to  perform  as  master,  without  regard 
to  the  rank  or  title  of  the  agent  intrusted  with  their  performance. 
As  to  such  acts  the  agent  occupies  the  place  of  the  corporation, 
and  the  latter  is  liable  for  the  manner  in  which  they  are  per- 
formed." 

The  liability  of  the  master  is  thus  made  to  depend  upon  the 
character  of  the  act  in  the  performance  of  which  the  injury 
arises,  without  regard  to  the  rank  of  the  employe  performing 
it.  If  it  is  one  pertaining  to  the  duty  the  master  owes  to  his 
servants,  he  is  respoftsible  to  them  for  the  manner  of  its  per- 
formance. The  converse  of  the  proposition  necessarily  follows. 
If  the  act -is  one  which  pertains  only  to  the  duty  of  an  opera- 
tive, the  employe  performing  it  is  a  mere  servant,  and  the  master, 
although  liable  to  strangers,  is  not  liable  to  a  fellow-servant  for  its 
improper  performance.  (Wood's  Master  and  Servant,  §  438  ) 
The  citation  which  the  court  read  to  the  jury  from  21  Am.  Rep. 
2  does  not  conflict  with,  but  sustains  this  proposition.  It  says :  "Where 
the  master  places  the  entire  charge  of  his  business  in  the  hands 
of  an  agent,  the  neglect  of  the  agent  in  supplying  and  maintaining 
suitable  instrumentalities  for  the  zvork  required  is  a  breach  of 
duty  for  which  the  master  is  liable."  -  These  were  masters'  duties. 
In  so  far  as  the  case  from  which  the  citation  is  made  goes  beyond 
this,  I  cannot  reconcile  it  with  established  principles.  In  England, 
by  a  late  act  of  Parliament,  the  rules  touching  the  point  no\y  under 
consideration  have  been  modified  in  some  respects,  but  in  this  State 
no  such  legislation  has  been  had. 

The  point  is  sharply  presented  in  the  present  case,  by  the  13th, 
14th  and  17th  requests  to  charge.  13th.  That  although  John  L. 
Babbitt  may,  as  financial  agent  or  superintendent,  overseer  or  man- 
ager, have  represented  defendant,  and  stood  in  his  place,  he  did 
so  only  in  respect  of  those  duties  which  the  defendant  had  confided 
to  him  as  such  agent,  superintendent,  overseer  or  manager. 

This  the  court  charged. 

14th.  That  as  to  any  other  acts  or  duties  performed  by  Inm 
in  and  about  the  defendant's  works  or  business  at  said  works. 
he  is  not  to  be  regarded  as  defendant's  representative,  standing 
in  his  place,  but  as  an  employe  or  servant  of  the  defendant,  and 
a  fellow-servant  of  the  plaintiff. 

This  the  court  refused  to  charge,  but  left  as  a  question  of  fact 
to  the  jury,  and  defendant's  counsel  excepted.  I  think  this  was 
a  question  o/  law.  and  that  the  court  erred  in  submitting  it  to  the 
jury,  but  should  have  charged  as  requested. 

The   court   was    further   specifically    requested    to    charge   that 


^This  statement  is  a  condensation  of  a  part  of  the  opinion  of  Woodward, 
J.,  in  MiiUan  v.  P.  &  S.  S.  S.  Co.,  78  Pa.  25  (1875),  P-  32- 


48  APPENDIX. 

in  letting  on  the  steam  John  L.  Bahhitt  was  not  acting  in  de- 
fendant's place.  This,  I  think,  was  a  sound  proposition,  as  ap- 
plied to  the  present  case.  It  was  the  act  of  a  mere  operative  for 
which  the  defendant  would  be  liable  to  a  stranger,  but  not  to  a 
fellow-servant  of  the  negligent  employe.  As  between  master  and 
servant  it  was  servant's,  and  not  master's,  duty  to  operate  the 
machinery. 

The  judgment  should  be  reversed.^ 


BALTIMORE  &  OHIO  RY.  CO.  v.  BAUGH. 

Supreme  Court  of  the  U.  S.,  1893.     I49  U.  S.  368. 

John  Baugh,  defendant  in  error,  was  employed  as  a  fireman  on 
a  locomotive  of  the  plaintiff  in  error,  and  when  so  employed  was 
injured,  as  is  claimed,  through  the  negligence  of  the  engineer  in 
charge  thereof.  He  commenced  a  suit  to  recover  for  these  injuries 
in  the  Circuit  Court  of  the  United  States  for  the  Southern  District 
of  Ohio.  The  circumstances  of  the  injury  were  these :  The  locomo- 
tive was  manned  by  one  Hite,  as  engineer,  and  Baugh,  as  fireman, 
and  was  what  is  called  in  the  testimony  a  "helper."  On  May  4th,  1885, 
it  left  Bellaire,  Ohio,  attached  to  a  freight  train,  which  it  helped  to 
the  top  of  a  grade  about  20  miles  west  of  that  point.  At  the  top 
of  the  grade  the  helper  was  detached,  and  returned  alone  to  Bellaire. 
The  rules  of  the  company  provided  for  two  ways  in  which  it  could 
return ;  one,  on  the  special  orders  of  the  train  despatcher,  and  the 
other,  by  following  some  regular  schedule  train  which  must  then 
carry  signals  to  notify  trains  coming  in  the  opposite  directions  that 
the  helper  was  following  it.  On  the  day  in  question,  without  spe- 
cial orders  and  not  following  any  schedule  train,  the  helper  started 
back  for  Bellaire,  and  on  the  way  collided  with  a  local  train,  and  in 
the  collision  Baugh  was  injured. 

No  testimony  was  offered  by  the  defendant,  and  at  the  close 
of  the  plaintiff's  testimony  it  asked  the  court  to  direct  a  non-suit, 
which  motion  was  overruled,  to  which  ruling  an  exception  was  duly 
taken.  In  its  charge  to  the  jury  the  Court  gave  this  instruction: 
"If  the  injury  results  from  negligence  or  carelessness  on  the' part  of 
one  so  placed  in  authority  over  the  employee  of  the  company,  who 
is  injured,  as  to  direct  and  control  that  employee  then  the  company 
is  liable."  To  which  instruction  an  exception  was  duly  taken.  The 
jury  returned  a  verdict  for  the  plaintiff  for  $6750  and  upon  this 
verdict  judgment  was  entered,  to  reverse  which  the  railroad  company 
sued  out  a  writ  of  error. 


'  The  doctrine  of  this  case  has  been  rigidly  applied  in  New  York,  Ulrich 
V.  R.  R.,  25  N.  Y.  App.  Div.  (1898)  465;  Massachusetts.  172  Mass.  375  (1899)  ; 
A''<'TC'  Jersey,  Curley  v.  Hoff.  62  N.  J.  L.  758  ( 1899)  ;  Rhode  Island,  Hanna  v. 
Granger,  18  R.  I.  507  (1894)  ;  Larich  v.  Moies.  ib.  513:  Di  Marcho  v.  Foundry, 
ib.  STii;  Maryland.  Hamelin  v.  Malster,  57  Md.  287  (1881)  ;  Maine,  Doughty 
v.  Penobscot,  76  Me.  143  (1884). 


BALTIMORE   \   OHIO  RV.   CO.   Z'.   BAUGII.  49 

Brev/er,  J.  :^  The  single  question  presented  for  our  determina- 
tion is,  whether  the  engineer  and  fireman  of  this  locomotive,  run- 
ning alone  and  without  any  train  attached,  were  fellow-servants  of 
the  company,  so  as  to  preclude  the  latter  from  recovering  from  the 
company  for  injuries  caused  by  the  negligence  of  the  former. 

Counsel  for  defendant  in  error  rely  principally  upon  the  case 
of  Railroad  Co.  v.  Ross,  112  U.  S.  ^jy,  taken  in  connection  with  this 
portion  of  Rule  No.  10  of  the  company :  "Whenever  a  train  or  engine 
is  run  without  a  conductor,  the  engineman  thereof  will  also  be 
regarded  as  conductor,  and  will  act  accordingly."  The  Ross  case, 
as  it  is  commonly  known,  decided  that  "a  conductor  of  a  railroad 
train,  who  has  a  right  to  command  the  movements  of  a  train  and 
control  the  persons  employed  upon  it,  represents  the  company  while 
performing  those  duties,  and  does  not  bear  the  relation  of  fellow- 
servant  to  the  engineer  and  other  employees  on  the  train."  The 
argument  is  a  short  one :  The  conductor  of  a  train  represents  the 
company,  and  is  not  a  fellow-servant  with  his  subordinates  on  the 
train.  The  rule  of  the  company  provides  that  when  there  is  no  con- 
ductor, the  engineer  shall  be  regarded  as  a  conductor.  Therefore, 
in  such  case  he  represents  the  company,  and  is  likewise  not  a  fellow- 
servant  with  his  subordinates.  But  this  gives  a  potency  to  the 
rule  of  the  company  which  it  does  not  possess.  The  inquiry  must 
always  be  directed  to  the  real  powers  and  duties  of  the  official  and 
not  simply  to  the  name  given  to  the  office.  The  regulations  of  a 
company  cannot  make  the  conductor  a  fellow-servant  with  his 
subordinates,  and  thus  overrule  the  law  announced  in  the  Ross  case. 
Neither  can  it,  by  calling  someone  else  a  conductor,  bring  a  case 
within  the  scope  of  the  rule  there  laid  down.  In  other  words,  the 
law  is  not  shifted  backwards  and  forwarOs  by  the  mere  regulation 
of  the  company,  but  applies  generally,  irrespectively  of  all  such  regu- 
lations. There  is  a  principle  underlying  the  decision  in  that  case, 
and  the  question  always  is  as  to  the  applicability  of  that  principle 
to  the  given  state  of  facts. 

What  was  the  Ross  case,  and  what  was  decided  therein?  The 
instruction  given  on  the  trial  in  the  Circuit  Court,  which  was  made 
the  principal  ground  of  challenge,  was  in  these  words:  "It  is  very 
clear,  I  think,  that  if  the  company  sees  fit  to  place  one  of  its  em- 
ployees under  the  control  and  direction  of  another,  that  then  the 
two  are  not  fellow-servants  engaged  in  the  same  common  employ- 
ment, within  the  meaning  of  the  rule  of  law  of  which  I  am  speak- 
ing." The  language  of  that  instmction.  it  will  be  perceived,  is  very 
like  that  of  the  one  here  complained  of.  and  if  this  court  had  ap- 
proved that  instruction  as  a  general  rule  of  law.  it  might  well  be 
said  that  that  was  sufficient  authority  for  sustaining  this  and  affirm- 
ing the  judgment.     But  though  the  question  was  fairly  before  the 


'  The  opinfon  is  much  condensed,  and  all  that  part  which  holds  that  the 
relations  between  master  and  servant  arc  of  a  general  and  not  a  local  nature 
and  that,  therefore,  the  Federal  Courts  are  not  bound  to  follow  the  decisions, 
as  to  the  liability  of  the  one  to  the  other,  rendered  in  the  State  in  which  the 
relation  exists  and  the  accident  occurred,  is  omitted.  The  opinion  of  Field,  J., 
dissenting  upon  both  points,  is  similarly  abridged. 


50  APPENDIX. 

court,  it  cFid  not  attempt  to  approve  the  instruction  generally,  but 
simply  held  that  it  was  not  erroneous  as  applied  to  the  facts  of  that 
case. 

After  stating  the  general  rule,  that  a  servant  entering  into 
service  assumes  the  ordinary  risks  of  such  employment,  and,  among 
them,  the  risk  of  injuries  caused  through  the  negligence  of  a  fellow- 
servant,  and  after  referring  to  some  cases  on  the  general  question, 
and  saying  that  it  was  unnecessary  to  lay  down  any  rule  which  would 
determine  in  all  cases  what  is  to  be  deemed  a  common  employment, 
it  turns  to  that  which  was  recognized  as  the  controlling  fact  in  the 
case,  to  wit,  the  single  and  absolute  control  which  the  conductor  has 
over  the  management  of  a  train,  as  a  separate  branch  of  the  com- 
pany's business,  and  says  (p.  390)  :  "There  is,  in  our  judgment,  a 
clear  distinction  to  be  made  in  their  relation  to  their  common  princi- 
pal, between  servants  of  a  corporation,  exercising  no  supervision 
over  others  engaged  with  them  in  the  same  employment,  and  agents 
of  the  corporation,  clothed  with  the  control  and  management  of  a 
distinct  department^  in  which  their  duty  is  entirely  that  of  direction 
and  superintendence.  .  .  .  We  know  from  the  manner  in  which 
railways  are  operated  that,  subject  to  the  general  rules  and  orders 
of  the  directors  of  the  companies,  the  conductor  has  entire  control 
and  management  of  the  train  to  which  he  is  assigned.  He  directs 
when  it  shall  start,  at  what  speed  it  shall  run,  at  what  stations  it 
shall  stop,  and  for  what  length  of  time,  and  everything  essential 
to  its  successful  movements,  and  all  persons  employed  on  it  are  sub- 
ject to  his  orders.  In  no  proper  sense  of  the  term  is  he  a  fellow- 
servant  with  the  fireman,  the  brakeman,  the  porters,  and  the  engi- 
neer. The  latter  are  fellow-servants,  in  the  running  of  the  train 
under  his  direction ;  as  to  them  and  the  train,  he  stands  in  the  place 
of  and  represents  the  corporation." 

The  Court,  therefore,  did  not  hold  that  it  was  universally  true 
that,  when  one  servant  has  control  over  another,  they  cease  to  be 
fellow-servants  within  the  rule  of  the  master's  exemption  from  lia- 
bility, but  did  hold  that  an  instruction  couched  in  such  general  lan- 
guage was  not  erroneous  when  applied  to  the  case  of  a  conductor 
having  exclusive  control  of  a  train  in  relation  to  other  employees  of 
the  company  acting  under  him  on  the  same  train.  The  conductor 
was,  in  the  language  of  the  opinion,  "clothed  with  the  control  and 
management  of  a  distinct  department"  ;  he  was  "a  superintending 
officer",  as  described  by  Mr.  Wharton ;  he  had  "the  superintendence 
of  a  department",  as  suggested  by  the  New  York  Court  of  Appeals. 

And  this  rule  is  one  frequently  recognized.  Indeed,  where 
the  master  is  a  corporation,  there  can  be  no  negligence  on  the  part  of 
the  master  except  it  also  be  that  of  some  agent  or  servant,  for  a  cor- 
poration only  acts  through  agents.  The  directors  are  the  manag- 
ing agents  ;  their  negligence  must  be  adjudged  the  negligence  of  the 
corporation,  although  they  are  simply  agents.  So  when  they  place 
the  entire  management  of  the  corporation  in  the  hands  of  a  general 
superintendent,  such  general  superintendent,  though  himself  only 
an  agent,  is  almost  universally  recognized  as  the  representative  of 
the  corporation,  the  master,  and  his  negligence  as  that  of  the  master. 


BALTIMORE   &  OHIO  RY.   CO.   V.   r.AUGII.  5I 

And  it  is  only  carrying  the  same  principle  a  little  further  and  with 
reasonable  application,  when  it  is  held  that,  if  the  business  of  the 
master  and  employer  becomes  so  vast  and  diversified  that  it  nat- 
urally separates  itself  into  departments  of  service,  the  individuals 
placed  by  him  in  charge  of  those  separate  branches  and  departments 
of  service,  and  given  entire  and  absolute  control  therein,  are  properly 
to  be  considered,  with  respect  to  employees  under  them,  vice-prin- 
cipals, representatives  of  the  master,  as  fully  and  as  completely  as 
if  the  entire  business  of  the  master  was  by  him  placed  under  charge 
of  one  superintendent.  But  this  rule  can  only  be  fairly  applied 
when  the  different  branches  or  departments  of  service  are  in  and  of 
themselves  separate  and  distinct.  Thus,  between  the  law  department 
of  a  railway  corporation  and  the  operating  department,  there  is  a 
natural  and  distinct  separation,  one  which  makes  the  two  depart- 
ments like  two  independent  kinds  of  business,  in  which  the  one 
employer  and  master  is  engaged.  So  oftentimes  there  is  in  the 
affairs  of  such  corporation  what  may  be  called  a  manufacturing  or 
repair  department,  and  another  strictly  operating  department ; 
these  two  departments  are,  in  their  relations  to  each  other,  as  distinct 
and  separate  as  though  the  work  of  each  was  carried  on  by  a  sepa- 
rate corporation.  And  from  this  natural  separation  flows  the  rule 
that  he  who  is  placed  in  charge  of  such  separate  branch  of  the 
service,  who  alone  superintends  and  has  the  control  of  it,  is  as  to  it 
in  the  place  of  the  master.-  But  this  is  a  very  different  proposition 
from  that  which  affirms  that  each  separate  piece  of  work  in  one  of 
these  branches  of  service  is  a  distinct  department,  and  gives  to  the 
individual  having  control  of  that  piece  of  work  the  position  of  vice- 
principal  or  representative  of  the  master.^ 


'See  also  Brewer,  J.,  in  Hoivard  v.  Railroad,  26  Fed.  Rep.  837  (1886),  p. 
643.  "To  make  one  as  the  controller  of  a  department  properly  the  repre- 
sentative of  the  master,  his  duties  should  be  principally  those  of  direction 
and  control.  He  should  have  something  more  than  the  mere  management  of 
machinery;  he  should  have  subordinates  over  whose  various  actions  he  has 
supervision  and  control,  and  not  a  mere  assistant  to  him  in  his  working  of 
machinery.  He  should  have  control  over  an  entire  department  of  service, 
and  not  simply  of  a  single  machine  in  that  service."  And  see  also  McBride, 
J.,  in  Nail  v.  R.  R.,  129  Ind.  260  (1891),  p.  270:  "One  who  is  placed  in  unre- 
stricted control  of  a  given  department  by  his  master,  and  is  clothed  with  the 
power  to  command  the  services  of  other  employees,  not  simply  to  see  that 
they  faithfully  discharge  Ihe  duties  ordinarily  pertaining  to  the  employment, 
and  in  the  usual  places,  with  the  usual  appliances  provided  therefor,  but  has 
the  authority  to  require  of  them  the  performance  of  other  duties  in  other 
places,  and  with  other  appliances ;  who  has  authority  to  call  the  section  men. 
the  bridge  builders,  the  freight  handlers,  and  the  laborers  from  the  gravel 
pit  and  gravel  trains,  and  require  of  all  that  they  unite  in  averting  the  threat- 
ened destruction  of  a  bridge,  is  certainly  in  such  matters  more  than  a  mere 
fellow  servant  with  those  subject  to  his  control." 

^  "Where  more  than  one  man  is  engaged  in  doing  any  particular  work, 
it  becomes  almost  a  necessity  that  one  should  be  boss  and  the  other  sub- 
ordinate, but  both  are  nevertheless  fellow  workmen  ;"  Peckham,  J.,  Northern 
Pacific  R.  R.  V.  Peterson.  162  U.  S.  346  (1896),  p.  337-  "The  fact  that  .ino 
employee  is  more  skillful  than  another,  or  has  had  greater  experience,  and  is 
so  deferred  to  by  others  does  not  change  his  relation  to  his  employer  or  to 
his  fellows.  Nor' does  a  difiFerence  in  rank  or  grade  of  service  change  the  rule. 
When  the  character  of  the  business  requires  it,  the  master  is  as  much  bound 


52  APPENDIX. 

The  truth  is,  the  various  employees  of  one  of  these  large  cor- 
porations are  not  graded  like  steps  in  a  staircase,  those  on  each 
step  being  as  to  those  on  the  step  below  in  the  relation  of  masters 
and  not  of  fellow-servants,  and  only  those  on  the  same  steps  fellow- 
servants,  because  not  subject  to  any  control  by  one  over  the  other. 
Prima  facie,  all  who  enter  into  the  employ  of  a  single  master  are 
engaged  in  a  common  service,  and  are  fellow-servants,  and  some 
other  line  of  demarcation  than  that  of  control  must  exist  to  destroy 
the  relation  of  fellow-servants.  All  enter  into  the  service  of  the 
same  master,  to  further  his  interests  in  the  one  enterprise;  each 
knows  when  entering  into  that  service  that  there  is  some  risk  of 
injury  through  the  negligence  of  other  employees,  and  that  risk, 
which  he  knows  exists,  he  assumes  in  entering  into  the  employment. 
Thus,  in  the  opinion  in  the  Ross  case,  p.  382,  it  was  said :  "Having 
been  engaged  for  the  performance  of  specified  services,  he  takes 
upon  himself  the  ordinary  risks  incident  thereto.  As  a  consequence, 
if  he  suffers  by  exposure  to  them  he  cannot  recover  compensation 
from  his  employer.  The  obvious  reason  for  this  exemption  is,  that 
he  has.  or,  in  law,  is  supposed  to  have,  them  in  contemplation  when 
he  engages  in  the  service,  and  that  his  compensation  is  arranged 
accordingly.  He  cannot,  in  reason,  complain  if  he  suffers  from  a 
risk  which  he  has  voluntarily  assumed,  and  for  the  assumption  of 
which  he  is  paid." 

But  the  danger  from  the  negligence  of  one  specially  in  charge 
of  the  particular  work  is  as  obvious  and  as  great  as  from  that  of 
those  who  are  simply  co-workers  with  him  in  it.  Eacli  is  equally 
with  the  other  an  ordinary  risk  of  the  employment,  li  he  is  paid 
for  the  one,  he  is  paid  for  the  other;  if  he  assumes  the  one,  he  as- 
sumes the  other.  Therefore,  so  far  as  the  matter  of  the  master's 
exemption  from  liability  depends  upon  whether  the  negligence  is 
one  of  the  ordinary  risks  of  the  employment,  and,  thus  assumed  by 
the  employee,  it  includes  all  co-workers  to  the  same  end,  whether  in 
control  or  not.* 


to  provide  his  workmen  with  a  reasonably  competent  foreman  as  to  provide 
them  with  tools,  but  in  either  case  his  liabihty  ceases  when  he  has  made  a 
suitable  selection.  What  remains  to  be  done  is  that  each  workman,  whatever 
his  rank  or  skill  or  experience,  shall,  with  reasonable  diligence  and  intelli- 
gence, discharge  his  duty  towards  his  employer  and  his  fellows;"  Williams, 
J.,  Ross  v.  Walker,  139  Pa.  42  (1891),  p.  49- 

^"Where  groups  or  gangs  of  men  are  employed  in  the  performance  of 
work,  it  is,  in  the  nature  of  things,  impossible  to  bend  their  energies  to  the 
accomplishment  of  the  ultimate  purpose  without  intelligent  direction  upon 
the  part  of  one  mind.  To  secure  this  end  and  in  many  circumstances  to 
protect  the  men  themselves,  they  must  work  under  a  foreman.  His  work, 
although  it  consists  in  giving  directions,  is  not  only  essential,  but,  as  his  com- 
mands set  in  motion  forces  which  may  lead  to  the  injury  or  death  of  those 
under  him,  there  is  an  especial  reason  why  the  employees  should  consider 
the  intelligence  and  prudence  of  the  man  in  control.  If  there  is  any  phil- 
osophy in  the  general  rule,  its  purpose  must  be  clearest  in  the  case  of  co- 
service  of  this, character,  since  the  workmen  have  ordinarily  a  better  oppor- 
tunity than  the  master  to  determine  how  much  of  discretion  the  foreman 
possesses.  These  considerations,  and  especially  the  want  of  opportunity 
upon  the  part  of  the  master  to  supervise  every  command  should  prompt 
courts  to  exculpate  him  where  there  has  been  no  negligence  in  the  perform- 


r.ALTIMORF,   .S:   OHIO   RV.    CO.   7'.    HAUfnU.  53 

Rut  within  such  limits  the  master  who  provides  the  place,  the 
tools,  and  the  machinery  owes  a  positive  duty  to  his  employee  in 
respect  thereto.  That  positive  duty  does  not  go  to  the  extent  of  a 
guaranty  of  safety,  but  it  does  require  that  reasonable  precautions 
be  taken  to  secure  safety,  and  it  matters  not  to  the  employee  by 
whom  that  safety  is  secured,  or  the  reasonable  precautions  therefor 
taken.  He  has  a  right  to  look  to  the  master  for  the  discharge  of 
that  duty,  and  if  the  master,  instead  of  discharging  it  himself,  sees 
fit  to  have  it  attended  to  by  others,  that  does  not  change  the  measure 
of  obligation  to  the  employee,  or  the  latter's  right  to  insist  that 
reasonable  precaution  shall  be  taken  to  secure  safety  in  these  re- 
spects. Therefore  it  will  be  seen  that  the  question  turns  rather  on 
the  character  of  the  act  than  on  the  relations  of  the  employees  to 
each  other.  If  the  act  is  one  done  in  the  discharge  of  some  positive 
duty  of  the  master  to  -the  servant,  then  negligence  in  the  act  is  the 
negligence  of  the  master. 

It  may  safely  be  said  that  this  court  has  never  recognized  the 
proposition  that  the  mere  control  of  one  servant  over  another  in 
doing  a  particular  piece  of  work  destroys  the  relation  of  fellow- 
servants,  and  puts  an  end  to  the  master's  liability.  On  the  con- 
trary, all  the  cases  proceed  on  the  ground  of  somiC  breach  of  positive 
duty  resting  upon  the  master,  or  upon  the  idea  of  superintendence 
or  control  of  a  department.  It  has  ever  been  affirmed  that  the 
employee  assumes  the  ordinary  risks  incident  to  the  service;  and. 
as  we  have  seen,  it  is  as  obvious  that  there  is  risk  from  the  negli- 
gence of  one  in  immediate  control  as  from  one  simply  a  co-worker. 
That  the  running  of  an  engine  by  itself  is  not  a  separate  branch  of 
service,  seems  perfectly  clear.  The  fact  is,  all  the  locomotive  en- 
gines of  a  railroad  company  are  in  tlie  6ne  department,  the  oper- 
ating department;  and  Ijiose  employed  in  running  them,  whether 
as  engineers  or  firemen,  are  engaged  in  a  common  employment  and 
are  fellow-servants.  It  might  as  well  be  said  that,  where  a  livery- 
man has  a  dozen  carriages,  the  driver  of  each  has  charge  of  a  sep- 
arate branch  or  department  of  service,  and  that  if  one  drives  his 
carriage  negligently  against  another  employee  the  master  is  exempt 
from  liability. 

Reversed  and  the  case  remanded  for  a  new  trial. ^ 

Mr.  Justice  Field  dissenting. 


ance  of  a  master's  duty,  as  in  negligently  hiring  or  retaining  an  unfit  fore- 
man;" Gillett,  J..  Dill  V.  Marmon,  164  Ind.  507  (1905).  p.  519. 

'In  New  England  Railroad  Co.  v.  Conroy.  175  U.  S.  323  (1899).  Chicago 
etc.,  R.  R.  V.  Ross.  tt2  U.  S.  377  (1884').  was  definitely  overruled  upon  the 
very  point  decided.  Shiras,  J.,  saying,  p.  34T  :  "We  think  it  went  too  far 
in  holding  that  a  conductor  of  a  freight  train  is,  ipso  facto,  a  vice-prmcipal 
of  the  company.  An  inspection  of  the  opinion  shows  that  that  conclusion  was 
based  upon  certain  assumptions,  not  borne  out  by  the  evidence  in  the  case, 
as  to  the  powers  and  duties  of  conductors  of  freight  trains." 

Until  the  decision  in  the  principal  case  Ross'  case  had  been  understood 
as  going  at  least  to  the  extent  of  making  an  employee  a  vice-principal  of  his 
employer,  where  the  latter  had  entrusted  to  him  the  direction  of_  any  part  of 
his  business  and  had  for  that  purpose  given  him  control  over  inferior  ser- 
vants who  were  required  to  obey  his  orders,  and  where  such  employee,  being 
either  permanently  or  temporarily  out  of  reach  of  any  superior  to  whom  he 


54 


APPENDIX. 


BLOYD  V.  RAILWAY  CO. 
Supreme  Court  of  Arkansas,  1893.     58  Ark.  66. 

Mansfield,  J.,  in  Bloyd  v.  Railway  Co.,  58  Ark.  66  (1893),  p. 
71  :  A  servant  engaged  with  a  squad  of  men  in  constructing  a  trestle 
was  ordered  by  one  Munden,  who  was  in  charge  of  the  work,  to 
unload  a  certain  car ;  at  about  the  same  time  Munden  ordered  the  train 
crew  to  move  forward,  so  injuring  the  plamtitt,  who,  in  obedience  to 
the  order  to  unload  the  car,  was  upon  the  trestle.  In  a  general  sense 
the  work  on  trestles  was  done  under  the  supervision  of  one  Bradley, 
who  was  the  defendants'  superintendent  of  bridges,  but  it  appeared 
Bradley  had  never  supervised  this  particular  piece  of  work  and  the 
gang  looked  for  directions  exclusively  to  Munden,  who  performed 
no  material  labor,  but  whose  sole  business  it  was  to  direct  and 
oversee  the  work. 

In  some  of  the  adjudged  cases  the  distinction  between  the  rela- 
tions indicated  by  the  words  foreman  and  vice-principal  is  appar- 
ently made  to  depend  more  upon  the  extent  or  magnitude,  than  upon 
the  nature,  of  the  work  of  which  the  offending  servant  has  charge. 

Other  courts,  proceeding  upon  what  we  think  a  sounder  prin- 
ciple, have  attached  no  importance  to  the  extent  of  the  work,  but 
have  considered  only  whether  it  was  such  as  required  a  skillful  or 
careful  supervision ;  and  where  such  supervision  was  necessary  to 
the  safety  of  the  laborers  engaged  upon  the  work,  they  have  held  it 
was  the  master's  duty  to  bestow  it,  and  that  if  he  appointed  an 
agent  to  perform  that  duty  he  was  responsible  for  his  negligence.' 

It  was  not  the  rank  or  title  of  the  manager  which_  made  the 
company  present  in  his  person,  but  the  authority  with  which  he  was 
clothed.'  and  the  duty  of  supervision  he  undertook  to  perform ;  and 
if  an  officer  or  agent  of  inferior  grade  had  been,  for  the  time,  in- 
vested with  the  same  power,  and  had  undertaken  to  perform  the 
same  duty,  the  company  would,  we  think,  have  been  equally  liable 
for  his  negligence.2 


could  look  for  directions,  was  forced  to  rely  upon  his  own  judgment  as  to 
the  manner  in  which  the  work  was  to  be  done;  and,  as  so  understood,  was 
followed  not  onlv  bv  the  inferior  Federal  Courts  but  by  the  Courts  of  last 
resort  in  several  States:  as  Virginia.  Moon  v.  R.  R..  78  Va.  745  ^^884)  ;  Tor- 
rian  v  R  R  84  Va.  192  (1887),  and  West  Virginia.  Madden  v.  R.  R.,  28  W. 
Va  610  0886)  ;  Daniel  v.  R.  R..  .36  W.  Va.  397  (1892).  Upon  the  decision 
of  the  principal  case  these  jurisdictions  adopted  the  law  as  there  announced, 
overruling  their  earlier  decisions.  Norfolk,  etc.,  R.  R.  v.  Houchins,  95  Va.  398 
(1897)  ;  Jackson  v.  R.  R..  43  W.  Va.  380  (1897). 

*  So  in  Taylor  v.  R.  R..  121  Ind.  124  (1889),  it  was  held  that  a  company 
was  liable  where  a  master  mechanic,  who  was  held  to  be  so  far  in  full  control 
as  to  be  properly  regarded  as  a  vice-principal,  by  his  own  acts,  made  unsafe 
the  execution  of  a  command  which  he  had  given  the  plaintiff. 

-Accord-  Lewis  v.  Seifcrt.  T16  Pa.  628  (1887),  where  the  defendant  com- 
pany was  held  liable  for  the  negligence  of  an  assistant,  who  during  thfi 
train  despatcher's  absence,  was  authorized  to  take  his  place. 


DARRIGAX  V.   X.  V.  &  N.  K.  R.  R.  CO.  55 

DARRIGAN  v.  NEW  YORK  AND  NEW  ENGLAND 

RAILROAD  COMPANY. 

Supreme  Court  of  Errors  of  Connecticut,  1885.    52  Conn.  285. 

Carpenter,  J. :  On  December  14th,  1882,  there  were  two  special 
or  irregular  trains  going  in  opposite  directions  on  the  western  divi- 
sion of  the  defendant's  single  track  railroad.  These  trains  were  run 
as  directed  by  telegrams  from  the  train-dispatcher  in  the  division 
superintendent's  office  at  Hartford.  The  train  going  east  was  a  con- 
struction train.  About  twelve  o'clock  it  was  at  South  ford  station, 
where  it  received  an  order  from  the  train-dispatcher  to  "run  to  To- 
wantic  as  a  special  train  ahead  of  No.  6,  and  then  work  between 
Towantic  and  Waterbury  as  a  special  train  until  six  o'clock  P.  ]\L, 
and  protect  themselves  with  flags  against  Goble  special  east  after 
1.30  P.  M."  The  above  order  was  given  by  the  chief  train-dis- 
patcher. Soon  after  he  was  relieved  in  the  regular  course  of  busi- 
ness by  an  assistant.  A  little  before  five  o'clock  the  same  afternoon, 
the  plaintiff's  train  going  west  received  at  Waterbury  from  the  as- 
sistant train-dispatcher  an  order  to  run  to  Brewster's  as  a  special. 
In  obeying  this  order  the  two  trains  collided  and  the  plaintiff  was 
seriously  injured.  The  court  below  rendered  judgment  for  the 
plaintiff',  and  the  defendant  appealed. 

The  negligence  of  the  train-dispatcher  is  admitted,  but  the  de- 
fendant claimed  that  such  negligence  was  the  negligence  of  a  fellow- 
servant,  for  which  it  is  not  liable ;  and  that  is  the  first  question  pre- 
sented for  our  consideration. 

In  that  case  (Holden  v.  Fitchburg  R.  R.,  129  Mass.  268). 
Gray,  C.  J.,  says:  "If  a  master  uses  reasonable  care  in  employing 
suitable  servants,  in  supplying  and  keeping  in  repair  suitable  struc- 
tures and  engines,  and  ki  giving  proper  directions  and  takmg  due 
precautions  as  to  their  use,  he  is  not  responsible  to  one  servant  for 
the  negUgence  of  another  in  the  management  and  use  of  such  struc- 
tures and  engines  in  carrving  on  the  master's  work."  In  another 
place  he  adds :  "And  it  makes  no  difference  that  the  servant  whose 
negligence  causes  the  injury  is  a  sub-manager  or  foreman  of  higher 
grade  or  greater  authoritv  than  the  plaintiff." 

In  Feltham  v.  England,  L.  R.,  2  O.  B..  33,  it  is  said  that  the 
rule  of  exemption  is  not  altered  bv  the  fact  that  the  servant  guilty 
of  negligence  is  a  servant  of  superior  authority  whose  lawful  direc- 
tions the  other  is  bound  to  obey.  In  JVilson  v.  Merry,  L  R.,  i  H.  L., 
Scotch  Appeals,  326.  the  Lord  Chancellor  says :  "But  what  the  mas- 
ter is  in  mv  opinion,  bound  to  his  servants  to  do.  in  the  event  of  his 
not  personallv  superintending  and  directing  the  work  is  to  select 
proper  and  competent  persons  to  do  so,  and  to  furnish  them  with 
adequate  materials  and  resources  for  the  work.  When  he^has  done 
thic  he  ha^   in  mv  opinion,  done  all  that  he  is  bound  to  no. 

It  seems  to\is  that  the  rule  prevailing  in  Massachusetts,  and 
which  did  prevail  in  England  previous  to  the  passage  of  the  "Em- 
plovers'  I  iabilitv  Act,"  hereinafter  referred  to,  unduly  enlarges  the 
exemption  and  confines  the  liability  of  employers  within  too  narrow 
limits. 


56 


APPENDIX. 


The  rule  we  think  does  not  sufficiently  recognize  the  distinction 
between  agents,  managers,  and  even  superintendents,  on  the  one 
hand,  and  mere  servants  and  common  laborers  on  the  other;  be- 
tween duties  which  the  master  is  required  to  perform  and  work 
which  is  ordinarily  performed  by  employees.  It  makes  little  allow- 
ance for  emergencies,  and  does  not  sufficiently  regard  the  obvious 
fact  that  cases  are  constantly  arising,  especially  in  the  operation  of 
railroads,  which  no  general  rule  can  provide  for,  in  which  the  master 
must  be  regarded  as  constructively  present,  and  in  which  some  one 
must  be  invested  with  a  discretion  and  a  right  to  speak  and  com- 
mand in  his  name  and  by  his  authority.  Such  a  right  carries  with 
it  the  corresponding  duty  of  obedience — someone  must  hear  and 
obey.  To  make  no  discrimination,  but  in  all  cases  to  place  those 
who  are  invested  with  authority  to  direct  and  control  on  the  same 
footing  with  those  whose  duty  it  is  merelv  to  perform  as  directed 
without  discretion  and  without  responsibility,  seems  to  us  unwise 
and  impolitic. 

The  duties  of  a  master  in  most  cases  are  easily  distinguished 
from  those  of  an  employee.  The  proprietor  of  a  cotton  mill  is  bound 
to  have  a  safe  building,  a  safe  dam  or  engine,  and  safe  machinery ; 
and  he  is  bound  to  keep  them  so.  To  do  that  he  must  ernploy  skilled 
mechanics,  who  perform  his  duties.  Their  negligence  is  his  negli- 
gence. The  English  rule  says  that  he  has  done  his  whole  duty  when 
he  has  employed  skillful,  careful  men  to  do  this  work.  We  think 
that  a  more  salutary  rule  would  be  to  require  him  to  see  that  the 
work  is  actually  done  with  care  and  skill ;  to  require  him  to  inspect 
the  work  personally  if  competent,  and  if  not.  to  employ  others  who 
are,  and  who  will  exercise  more  than  ordinary  care,  so  as  to  make 
it  reasonably  certain  that  the  operatives  will  he  surrounded  by  safe 
machinery  and  appliances.  The  liability  of  the  master  for  the  negli- 
gence of  such  ager.ts  is  a  surer  guarantee  of  safety  than  immunity. 

The  diligence  required  will  be  the  greater  as  the  danger  and 
hazards  increase.  The  operation  of  a  railroad  requires  a  greater 
degree  of  care  than  the  operation  of  a  cotton  mill.  It  is  the  duty  of 
a  railroad  corporation  to  prepare  a  time  table  and  adjust  the  run- 
ning of  its  trains  so  as  to  avoid  collisions.  It  must  also  devise 
some  suitable  and  safe  method  by  which  to  run  special  and  irregular 
trains,  and  regular  trains  when  ofif  their  regular  time.  That  cannot 
be  done  by  general  rules.  Emergencies  will  arise  which  no  system 
of  rules  can  "anticipate  and  provide  for,  in  which  the  company  must 
act,  and  act  promptlv  and  efficiently.  In  this  case  the  scheme  de- 
vised was  to  have  these  trains  controlled  by  one  who  knew  the 
position  and  movement  of  ever^'  train  on  the  road  liable  to  be 
aflFected  by  them — a  train-dispatcher,  acting  in  the  name  and  by  the 
authoritv  of  the  superintendent.  Ts  there  not  a  wide  and  manifest 
difference  between  the  dutv  of  such  an  agent  and  the  duty  of  a 
locomotive  engineer'  The  duty  of  the  former  pertains  to  manage- 
ment and  direction,  that  of  the  latter  to  obedience.  Tt  is  immaterial 
that  these  men  are  hired  and  paid  bv  a  common  employer,  and  that 
their  employment  is  designed  to  accomplish  one  common  result. 
That  argument,  if  pressed  to  its  logical  conclusion,  would  obliter- 


DARRir.AX  V.   X.  V.  vt   X.   K.   R.  R.   CO.  5/ 

ate  all  distinctions  among  those  engaged  in  railroad  business,  from 
the  president  down  to  the  humblest  servant,  and  would  practically 
exempt  the  company  from  all  duty  and  all  liability  to  those  in  its 
service. 

A  reference  to  the  rules  of  the  company  in  connection  with 
the  facts  will  serve  to  show  that  the  views  above  expressed  are 
applicable  to  this  case.  Here  were  two  irregular  trains  to  be  moved 
in  opposite  directions  on  a  single  track  railroad  so  as  to  pass  each 
other.  It  was  necessary  that  their  movements  should  be  directed  by 
instructions  emanating  from  some  one  intelligent  source.  The  rules 
of  the  company  provide  for  moving  trains  by  special  orders.  One 
rule  is,  "All  orders  shall  be  given  by  a  superintendent,  or  by  a  dis- 
patcher appointed  for  that  purpose,  under  directions  of  a  super- 
intendent ;  no  other  person  will  be  allowed  to  give  them."  Another 
rule  is,  "Division  superintendents  are  supreme  on  their  respective 
divisions,  and  are  responsible  only  to  the  management  for  such 
orders  as  they  may  give."  The  following  is  from  the  finding  of  the 
court:  "So  far  as  the  printed  rules  and  regulations  of  the  company 
did  not  govern,  the  train-dispatcher  was  authorized  to  give  such 
orders  for  the  movement  and  protection  of  trains  as  he  saw  fit,  and 
while  so  acting  he  had  all  the  authority  of,  and  acted  in  the  stead 
and  place  of,  the  division  superintendent." 

The  train-dispatcher  then,  in  respect  to  the  matter  of  moving 
these  trains  was  supreme.  The  whole  power  of  the  corporation 
whose  duty  it  was  to  move  them  safely,  was  delegated  to  him.  He 
was  the  agent  through  whom  the  corporation  attempted  to  perform 
its  duty.  He  acted  in  its  name,  by  its  authority,  and  in  its  stead. 
The  engineer  was  bound  to  obey  his  order.  Disobedience  or  devia- 
tion would  have  been  subversive  of  order  and  discipline,  destructive 
in  its  consequences,  and  ^ist  cause  for  immediate  dismissal.  He  re- 
ceived an  order  to  go  west  from  Waterbury  on  a  single  track  road 
at  a  time  when  another  train  was  approaching  Waterbury  from  the 
west.  The  order  was  imperative  and  it  required  of  him  implicit 
obedience.  He  obeyed.  He  did  not  then  know^  the  consequences,  but 
the  company  did  or  should  have  known.  He  conformed  to  the  order 
as  he  was  bound  to;  and  while  so  conforming,  and  as  the  direct  con- 
sequence thereof,  he  was  injured.  Reason,  justice  and  law  require 
that  the  company  should  be  held  responsible. 

Another  rule  provides  that  "in  emergencies  each  employee  must 
promptly  obey  the  orders  of  any  superior  officer."  By  that  rule  the 
company  made  the  order  of  that  officer,  whoever  he  may  be.  and  of 
whatever  grade  he  may  be.  its  own.  \i  the  order  is  an  improper 
one,  and,  in  executing  it.  another  employee  is  injured,  the  company 
should  be  responsible.  In  such  a  case  the  grade  of  service  becomes 
and  is  material. 

That  rule,  too,  in  its  spirit  had  an  application  to  the  case. 
There  was  something  in  the  nature  of  an  emergency.  There  was 
no  room  for  divided  counsels ;  there  must  be  unity  of  purpose  and 
one  mind  must  control.  That  power  and  duty  devolved  upon  the 
train-dispatcher. 

It  is  worthy  of  notice  that  the  principles  which  we  think  should 


58  APPiZNDIX. 

govern  this  case  have  been  embodied  in  an  act  of  Parliament  and 
are  now  the  law  of  England.  The  decisions  of  her  courts  on  this 
question  have  been  overruled  by  statute.  In  1880  the  "Employers' 
Liability  Act"  was  passed,  the  first  section  of  which  is  as  follows : 

"When,  after  the  commencement  of  this  act,  personal  injury 
is  caused  to  a  workman — (i)  by  reason  of  any  defect  in  the  condi- 
tion of  the  ways,  works,  machinery  or  plant  connected  with  or  used 
in  the  business  of  the  employer;  or  (2)  by  reason  of  the  negligence 
of  any  person  in  the  service  of  the  employer  who  has  any  superin- 
tendence entrusted  to  him,  whilst  in  the  service  of  such  superin- 
tendence; or  (3)  by  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  to  whose  orders  or  directions  the  workman 
at  the  time  of  the  injury  was  bound  to  conform,  and  did  conform, 
when  such  injury  resulted  from  his  having  so  conformed;  or  (4) 
by  reason  of  the  act  or  omission  of  any  person  in  the  service  of  the 
employer,  done  or  made  in  obedience  to  the  rules  or  by-laws  of  the 
employer;  or  (5)  by  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  who  has  the  charge  or  control  of  any  signal, 
points,  locomotive  engine,  or  train  upon  a  railway ; — the  workman, 
or,  in  case  the  injury  results  in  death,  the  legal  personal  representa- 
tive of  the  workman,  and  any  person  entitled  in  case  of  death,  shall 
have  the  same  right  of  compensation  and  remedies  against  the  em- 
ployer as  if  the  workman  had  not  been  a  workman  of  nor  in  the 
service  of  the  employer  nor  engaged  in  his  work."  The  act  limits 
the  amount  to  be  recovered  in  certain  cases ;  and  will  cease  to  be 
operative  at  the  end  of  seven  years  unless  re-enacted.^ 


^Accord:  Railroad  v.  Barry,  58  Ark.  198  (1893)  :  Louisville,  etc.,  R.  R.  v. 
Heck,  151  Ind.  292  (1898);  Smith  v.  R.  R..  92  Mo.  359  (1887);  Sheehan  v. 
R.  R..gi  N.  Y.  332  (1883),  p.  337  ;  Hankins  v.  R.  R.,  142  N.  Y.  416  (1894)  ;  Leuns 
V.  Seifert,  116  Pa.  628  (1887)  ;  Brommer  v.  R.  R.,  205  Pa.  432  (1903)  ;  and  tliis 
though  the  delinquent  employee  is  not  the  regular  or  chief  train  despatcher. 
but  a  subordinate  filling  his  post  during  his  absence;  Lezvis  v.  Seifert,  supra. 
The  company  is  liable,  not  only  for  a  negligent  erroneous  order,  but  also  for 
the  despatcher's  non-feasance  in  failing  to  send  orders  when  the  necessity 
therefor  would  be  apparent  to  a  reasonably  prudent  despatcher;  Santa  Fc, 
etc.,  R.  R.  v.  Holmes,  202  U.  S.  436  (1906). 

The  weight  of  authority  is  in  favor  of  the  view  that  a  station  agent  in 
transmitting  the  orders  of  the  train  despatcher  to  the  crews  of  the  trains 
whose  movements  are  to  be  thereby  regulatedis  acting  as  a  fellow  servant 
merely,  and  the  company  is  not  liable  for  his  inaccurate  transmission  or  for 
a  failure  to  transmit  at  all,  or  in  setting  the  warning  signals  required  by  such 
running  orders;  Slater  v.  Jexvett,  85  N.  Y.  61  (1881)  ;  Oregon  Short  Line 
V.  Frost.  74  Fed.  96s  (C.  C.  A.  oth  Circ,  1900)  ;  Dealey  v.  R.  R..  4  Atl.  170 
(Pa.,  1886)  :  Cincinnati,  etc.,  R.  R.  v.  Clark,  57  Fed.  125  (C.  C.  A.  6th  Circ, 
1893)  ;  and  Baltimore  &  Ohio  R.  R.  v.  Camp.  65  Fed.  9>2  CC.  C.  A.  6th  Circ. 
i8gs\  in  which  the  cases  on  both  sides  are  cited  by  Taft,  J.:  Monaghan  v.  R. 
R.,  AS  Hun  (N.  Y.).  113  (1887)  ,  seems  to  carry  beyond  its  proper  limits  the 
view  that  a  telegraph  operator  is  a  fellow  servant  of  the  crews  of  the  train 
to  which  he  gives  orders — since,  owing  to  a  temporary  disarrangement  of  its 
system  pending  certain  alterations,  the  operator  himself  issued  the  runninn' 
orders  and  did  not  merely  transmit  those  of  a  train  despatcher;  cf.  Lezvis  v. 
Sciffert,  ante.  . 

'Dana  v.  R.  R.,  92  N.  Y.  639  (1883),  said  by  White.  J.,  diss.,  m  Northern 
Pacific  R.  R.  v.  Dixon,  infra,  to  be  contra,  is  explained  in  Sutherland  v.  R.  R., 
26  X.  E.  609  (N.  Y.,  i8qi),  as  having  been  decided  on  the  ground  that,  upon 


J 


MAINE  .S;   ^M■:\V   IIAMPSIIIKI-:  C.RANITE  CO.  V.   IIACIIEV.  59 

Champlin,  J.,  in  Hunn  v.  Michigan  Central  R.  R.,  78  Mich. 
513(1889)- 

Perhaps  no  satisfactory  rule  has  yet  been  formulated  by  which 
it  may  in  all  cases  be  determined  who  are  fellow-servants,  in  such 
sense  as  to  shield  the  master  for  the  negligence  of  his  servant.  We 
may  start,  however,  where  the  rule  is  clear  that  a  master  is  liable 
to  his  servant  for  an  injury  caused  by  his  own  negligence.  The  mas- 
ter may  not  choose  to  give  his  personal  attention  to  his  business, 
and  may  desire  to  put  another  in  his  place,  to  manage  and  control  it 
f(ir  him  as  fully  as  he  might  do  if  personally  present.  Such  person 
is  his  alter  ego,  and  the  master  is  as  responsible  for  his  acts  of  omis- 
sion and  commission,  while  engaged  in  the  business  entrusted  to 
him,  as  if  he  did  such  acts  himself.  It  is  the  duty  of  the  master  to 
supervise,  direct,  and  control  the  operations  and  management  of  his 
business,  so  that  no  injury  shall  ensue  to  his  employes,  througli  his 
own  carelessness  or  negligence  in  carrying  it  on,  or  else  to  furnish 
some  person  who  will  do  so,  and  for  whom  he  must  stand  sponsor. 
This  is  true  of  natural  persons,  and  it  is  especially  true  of  corpora- 
tions, who  can  only  act  through  natural  persons.  Whenever  the 
business  conducted  by  the  person  selected  by  the  master  is  such  that 
the  person  selected  is  invested  with  full  control  (subject  to  no  one's 
supervision  except  the  master's)  over  the  action  of  the  employees 
engaged  in  carrying  on  a  particular  branch  of  the  master's  business, 
and,  acting  upon  his  own  discretion,  according  to  general  instructions 
laid  down  for  his  guidance,  it  is  his  providence  to  direct,  and  the 
duty  of  the  employees  to  obey,  then  he  stands  in  the  place  of  the 
master,  and  is  not  a  fellow-servant  with  those  whom  he  controls. - 


MAINE  &  NEW  HAMPSHIRE  GRANITE  CO  r.  HACHEY. 

Circuit  Court  of  Appeals,  First  Circuit.  iQog.     17,^  Fed.  784. 

Brown,  District  Judge:    This  is  a  writ  of  error  for  review  of 
tlie  rulings  of  the  Circuit  Court  in  an  action  for  negligence.  I'pon 

the  evidence,  the  jury  miglit  have  found  tliat  the  system  provided  for  tlie 
transmission  of  orders  was  insufficient. 

While  a  railroad  company  is  bound  to  establish  a  system,  adequate  if 
properly  carried  out.  for  reporting  the  movements  of  its  trains  to  its  train 
despalchers,  so  that  they  may  intelligently  issue  such  special  orders  as  may 
be  necessary,  it  is  not  liable  for  the  failure  of  an  employee  to  properly  carry 
out  such  system,  as  where  a  telegraph  operator  neglects  to  send  to  the  dc- 
spatcher  notice  of  the  passing  of  a  train,  though  as  a  result  a  train  despatcher, 
bv  reason  of  his  lack  of  information,  issues  a  fatally  dantierous  order. 
Northern  Pacific  R.  R.  v.  Dixon.  194  U.  S.  338  (1903):  ///.  Cent.  R.  R.  v. 
Bentz,  99  Fed.  657  (C.  C.  A.  6th  Circ,  1900"). 

'The  question  presented  in  the  facts  was  whether  the  defendant  com- 
pany was  liable  for  the  negligence  of  a  train  despatcher  who  has  sent  orders 
to  two  trains  which  necessitated  their  meeting  on  the  same  track,  and  had 
notified  the  creW  of  only  one  of  the  two  trains,  entirely  failing  to  notify  or 
give  proper  directions  to  that  of  the  other. 

'See  JVilsoii  v.  }ferry.  ante  p.  381,  and  .lUvo  v.  .tfiazvam.  6  Cush.  (60 
Mass.)  75  (1830).  where  the  servant  was  injured  by  the  improper  method  of 
conducting  the  defendant's  business,  adopted  and  directed  by  the  superin- 
tendent, who  had  full  control  thereof. 


6o  APPENDIX. 

the  conclusion  of  the  plaintiff's  testimony  the  Granite  Corporation 
moved  for  the  direction  of  a  verdict  in  its  favor,  and  upon  a  denial 
of  this  motion  duly  excepted.  Its  exception  raises  the  question 
whether,  upon  the  facts,  the  negligence  which  resulted  in  personal 
injuries  was  that  of  a  fellow  servant  or  of  the  master,  the  Granite 
Corporation. 

Hachey  was  employed  by  the  Granite  Corporation  in  its  quarry 
at  Redstone,  N.  H.  He  was  engaged  in  breaking  up  waste  rock,  or 
"grout,"  beside  a  large  pile  of  grout  about  30  feet  in  height.  Pieces 
of  waste  rock  were  deposited  upon  this  grout  pile  from  time  to  time 
by  a  derrick.  The  danger  from  falling  stone  was  such  as  to  require 
that  the  men  working  at  or  near  the  grout  pile  should  receive  a  warn- 
ing whenever  rock  was  to  be  dropped  from  the  derrick  upon  the 
slanting  grout  pile. 

The  derrick  was  operated  by  machinery,  and  was  in  charge  of 
a  boss  derrickman,  whose  duty  it  was  to  see  that  the  stones  were 
properly  raised,  swung,  and  deposited  upon  the  grout  pile,  to  give 
proper  signals  to  the  engineer,  and  also  to  give  warning  to  the  work- 
men in  the  vicinity  of  the  grout  pile  in  time  to  enable  them  to  go  to 
a  place  of  safety  while  stones  were  dropped  upon  the  pile.  The  boss 
derrickman  usually  had  one  or  two  men  under  him  as  helpers. 

It  is  agreed  that  it  was  the  duty  of  the  boss  derrickman  to  give 
timely  warnings,  either  personally  or  by  sending  one  of  his  helpers  to 
do  it.  The  warning  was  given  by  shouting,  or  at  times  by  rolling  a 
small  stone  near  the  men  at  the  foot  of  the  pile.  The  men  working 
at  or  near  the  grout  pile  were  accustomed  to  rely  upon  receiving  a 
signal  before  the  dumping  of  rock.  The  pile  of  grout  obstructed  the 
view  of  the  derrick,  and  the  attention  of  the  men  at  work  breaking 
up  rock  was  so  engaged  that  the  giving  of  signals  to  them  was  re- 
quired as  a  regular  accompaniment  of  the  operation  of  the  derrick. 
It  is  agreed  that  it  was  customary  for  the  derrickman  to  give  the 
signals  personally  or  through  one  of  his  helpers. 

Upon  the  present  record  it  must  be  assumed  that  the  boss  der- 
rickman, Bessanti,  was  guilty  of  negligence  in  dropping  a  heavy  stone 
on  the  grout  pile  without  giving  warning.  The  stone  slid  and  fell 
upon  Hachey,  inflicting  serious  injury.  Hachey  was  without  fault 
in  the  matter. 

The  Granite  Corporation,  plaintiff  in  error,  conceding  the  negli- 
gence of  Bessanti,  the  boss  derrickman,  contends  that  his  failure  to 
give  warning  of  the  movement  of  the  derrick  and  of  the  dropping  of 
stone  was  a  negligent  performance  of  the  duties  of  a  fellow-servant 
of  Hachey.  The  defendant  in  error  contends  that  under  the  circum- 
stances the  master,  in  order  to  make  the  place  at  the  side  of  the  grout 
pile  a  reasonably  safe  working  place,  was  bound  to  give  warning, 
and  that  the  person  employed  to  give  warning  was  performing  a  part 
of  the  master's  nondelegable  duty. 

In  support  of  the  contention  that  in  respect  to  the  duty  of 
giving  warning  of  the  dropping  of  stone  the  boss  derrickman  was 
not  a  fellow  servant,  but  a  representative  of  the  master,  the  defend- 
ant in  error  suggests  a  distinction  between  the  failure  to  observe  a 
rule  necessary  in  maintaining  a  safe  place  and  the  failure  to  observe 


MAINE  &  NEW   IIAMPSIIIR1-:  ( ;:<.\X  I  II-:  CO.  V.   IIACIIEV.  6[ 

a  rule  promulgated  for  the  successful  operation  of  the  work.  It  is 
argued  that  the  giving  of  a  warning  signal  was  not  a  work  of  opera- 
tion, and  that  it  was  distinct  from  the  duty  of  handling  the  rock. 
Such  a  division  of  the  duties  of  the  boss  derrickman  into  two  parts 
— that  is,  the  operation  of  the  derrick  and  moving  of  rock,  wherein 
he  would  be  a  fellow  servant,  and  that  of  giving  warning,  wherein 
he  would  not  be  a  fellow  servant — is  not  sound. ^  Those  cases  which, 
in  general  terms,  state  it  to  be  the  master's  duty  to  give  warning  to 
inexperienced  servants  or  of  special  dangers  are  not  applicable  to 
the  facts  of  the  present  case,  though  they  may  furnish  some  general 
phrases  which  seem  to  give  support  to  the  argument  of  the  defend- 
ant in  error.  The  general  proposition  that  it  is  the  duty  of  the 
master  to  give  warning  is  not  to  be  so  extended  as  to  require  him 
to  give  in  person  or  to  insure  the  giving  by  others  of  all  those  spe- 
cial signals  or  shouts  which  are  so  associated  with  the  work  of  opera- 
tion as  to  become  part  of  it.  The  employment  of  different  men  in 
different  parts  of  the  general  work  requires  under  many  circum- 
stances the  giving  of  signals  as  an  accompaniment  of  the  work 
itself,  in  order  that  there  may  be  co-operation  in  the  movement  of 
the  men.-  The  giving  of  such  signals  is  a  part  of  the  work  of  opera- 
tion. Such  signals  are  rather  the  giving  of  information  of  what  one 
workman  is  about  to  do,  in  order  that  his  fellow  workmen  may 
have  knowledge  of  it  and  conduct  themselves  accordingly,  than  the 
giving  of  orders  which  are  to  be  considered  as  the  orders  of  a  mas- 
ter. Standard  Oil  Company  v.  Anderson,  212  U.  S.  216-226,  29  Sup. 

Ct.  252,  53,  L.  Ed.  .    The  master  may  intrust  to  a  competent 

servant  the  work  of  shouting  or  otherwise  signaling  when  he  is 
about  to  hoist  or  to  lower  away,  and  it  is  not  the  master's  fault  if 
such  a  servant  fails  to  inform  his  fellow  "Servants  of  the  movement 
of  the  machine  under  hi§  charge. 

The  evidence  does  not  show  any  failure  of  the  master  to  make 
reasonable  provision  that  proper  signals  should  be  given.  The 
uninterrupted  custom  of  the  work  at  the  quarry  shows  that  there 
was  no  defect  in  the  system  established  by  the  master.  The  authori- 
ties do  not  support  the  contention  that  the  master  is  an  insurer  of 
the  sufficiency  of  the  means  that  he  selects  for  giving  signals.  There 
can  be  little  doubt  that  the  boss  derrickman.  who  controls  the  move- 
ments of  the  derrick  by  signaling  the  engineer,  is  a  suitable,  if  not 
the  most  suitable,  person  to  intrust  with  the  duty  of  giving  warning 


•See,  however.  BellcvUlc  Co.  v.  Mooncy.  61  X.  J.  L.  253  (189").  PP-  234- 
235,  contra. 

*  So  where  the  usual  operations  of  other  servants  necessarily  tend,  from 
time  to 'time,  to  imperil  a  servant,  who  from  the  nature  of  his  work  must 
crive  it  his  entire  attention,  the  master  must  adopt  a  system  and  promuleate 
ntles  which,  if  observed,  will  secure  to  the  servant  tunely  warnms  and  so 
enable  him  to  avoid  injury.  Smith  v.  Baker,  L  R.  1891.  A-  C  325 ;  Polaski  v. 
Pittsburgh  Coal  Co.,  134  Wis.  259  (iQoS).  and  sec  Labatt,  Master  and  Ser- 
vant ^^09  and  notes.  Wlien  the  necessity  of  warnmij  is  urgent,  the  mri^to" 
does' not  adequatelv  perform  his  duty  in  this  respect  by  committing  the  lask 
of  eivinc  it  to  a  servant  who  has  other  duties  to  perform  likely  to  divert 
his  attention;  The  Pioneer.  7^  Fed.  600  (Dist.  Ct.  1807):  U  cstcrn  Electric 
Co.  V.  Hansehnann,  136  Fed.  564  (C  C.  A.  2nd  Ore,  1905). 


62  APPENDIX. 

of  the  proposed  movements  of  the  derrick.  By  the  course  of  busi- 
ness, with  which  Hachey  by  many  years  of  experience  had  become 
famiHar,  the  duties  of  operating  the  derrick  and  of  giving  notice  of 
its  operations  were  related  and  associated  duties  intrusted  to  a  fellow- 
workman.  Reasonable  provision  for  giving  warning  having  been 
made,  the  danger  that  this  workman  might  be  negligent  in  a  single 
instance  in  the  performance  of  his  duty  was  a  risk  assumed  by 
Hachey. 

It  being  conceded  that  it  was  the  general  duty  of  the  boss  der- 
rickman  both  to  operate  the  derrick  and  to  give  signals  of  its  opera- 
tion, the  fact  that  shortly  before  the  accident  the  general  superin- 
tendent of  the  quarry  gave  him  special  instructions  to  look  out  for 
the  men  behind  the  grout  pile  did  not  change  his  status  as  a  fellow 
servant  or  enlarge  the  master's  liability  for  his  failure  of  duty.  The 
authorities  cited  by  the  plaintiff  in  error  amply  sustain  its  contention 
that  the  negligence  of  Bessanti  was  of  a  fellow  servant,  and  not 
the  negligence  of  the  master.  Among  them  are  Alaska,  etc.,  Mining 
Co.  V.  Whelan,  i68  U.  S.  86,  i8  Sup.  Ct.  40,  42  L.  Ed.  390 ;  McLainc 
V.  Head  &  Dowst,  yi  N.  H.  294.  52  Atl.  545,  58  L.  R.  A.  462.  93 
Am.  St.  Rep.  522;  Northern  Pacific  R.  R.  Co.  v.  Charles,  162  U.  S. 
359,  16  Sup.  Ct.  848,  40  L.  Ed.  999;  Martin  v.  Railroad  Co.,  166  U. 
S.  399,  17  Sup.  Ct.  603,  41  L.  Ed.  1051  ;  Hermann  v.  Mill  Co.  (D. 
C.)  71'Fed.  853;  Fortin  v.  Manville  Co.  (C.  C),  128  Fed.  642.  See, 
also,  Kreigh  v.  Westinghouse  &  Co.,  214  U.  S.  249-256,  29  Sup.  Ct. 

619,  53  L.  Ed. ;  Perry  v.  Rogers,  157  N.  Y.  251-255,  51  N.  E. 

102 1  et  seq.:  26  Cyc.  1338.^ 

The  judgment  of  the  Circuit  Court  is  reversed,  with  costs  of 
appeal  to  the  plaintiff"  in  error. 


MOORE  V.  DUBLIN  COTTON  MILLS. 
Supreme  Court  of  Georgia,  1906.  127  Georgia  Reports,  609. 
Cobb,  P.  J.  (After  stating  the  facts)  :  The  petition  alleged  that 
N  S  West  was  the  vice-principal  of  the  defendant,  and  the  defend- 
ant contends  that  the  evidence  introduced  failed  to  establish  this  alle- 
cration  and  that,  under  the  evidence.  West  was  only  a  fellow  servant, 
and  hence  the  defendant  was  not  liable  to  the  plamtifT  for  his  negh- 

'  4ccord-  Coleman  v.  Kcenan,  223  Pa.  29  (1909),  no  notice  of  blast; 
Ocean  S.  S.  Co.  v.  Chceney.  86  Ga.  278  (1890)  ■  Parlance  v.  LeJugh  Valley  Co 
loi  Wise.  S74  (1899)  :  Husscy  v.  Coger,  112  N.J  614/1889).  cargo  lowered 
into  hold  of  vesseUvithout  warning;  Martin  v.  R  R.,  166  U.  S.  399  (1896),  P- 
403,  foreman  gave  no  notice  to  crew  of  hand  car  of  approaching  tram: 
Lindquist  v.  Duluth  Ry.,  65  Mmn.  387.  1896)  ;  Coyle  v.  P.  R.  T.,  p  D-  R 
(  Pa  C  P  Phila  Co..  per  von  Moschzisker,  J.,  1908)  180,  no  warnmg  given 
to  men' repairing  tracks  of  approach  of  street  cars.  There  are,  however, 
decSfons  directly  opposed  to.  each  of  these ;  Bellcvme  Stone  Co^  ^^-Mooney, 
61  N  T  L  ^=;3  (1897).  blasting;  Anderson  v.  Pittsburg  Coal  Co  122  N.  W. 
-orrAIinn.  '1909).  loading  cargo;  D'Agosthw  v.  Ry.  Co.,  72  N_J.  L.  3?» 
r''9oO  wo;kn:en  repairing  street  railway  tracks;  ^''^^Y^'' ;,  ^^^,^,^.^1' 
215  (1895)  ■  Hunter  v.  North  Iowa  Brick  and  Tile  Co.,  136  N.  W.  51:5  (loua, 
191'/)  machine  run  by  engine  in  another  room,  started  without  any  warning- 
Sec  also  /Mnrf  Steel  C^y.  Smith,  39  Ind.  App.  636  (1905),  168  Ind,  24. 
C1907),  traveling  crane  run  without  warning  upon  an  employee  while  at  wor-s 
and  cases  cited  in  Anderson  v.  Coal  Company,  supra. 


MOORK  z'.  nrr.Lix  cotton  mills,  63 

gence.  The  case  absolutely  turns  on  this  question;  for,  as  to  the 
other  allegations  of  the  petition,  the  evidence  of  the  plaintiff  is  suf- 
ficient to  establish  them  as  they  are  therein  laid. 

The  question  at  last,  in  each  case,  is  whether  the  person  charged 
as  vice-principal  was  performing  towards  the  injured  servant  a  duty 
which  the  master  owed  to  that  servant  and  which  the  servant  had 
a  right  to  expect  would  be  discharged  by  the  master,  and  which  the 
master  could  not  avoid  or  shirk  by  placing  the  responsibility  upon 
another  person.  He  (the  master)  is  likewise  bound  to  make  rules 
and  regulations  for  the  conduct  of  his  business,  so  that  the  ma- 
chinery and  appliances  therein  may  be  so  operated  as  to  promote  the 
safety  of  his  servants.  He  may  formulate  and  promulgate  rules  to 
be  followed  by  his  servants  in  the  conduct  of  his  business,  by  placing 
the  same  in  their  hands;  or  he  may  authorize  one  of  his  servants 
to  give  direction  as  to  .the  manner  in  which  machines  and  other  ap- 
pliances of  a  dangerous  nature  shall  be  operated.  In  doing  this  he 
imposes  upon  this  servant  the  duty  wdiich  the  law  imposes  upon 
him,  and  the  servant  so  authorized  stands  in  the  place  of  the  master, 
and  is  his  representative,  so  far  as  other  servants  are  concerned,  as 
to  any  general  rule  that  may  be  promulgated  by  him,  or  specific  di- 
rection in  a  given  instance.  The  rule-book  of  a  railway  cornpany, 
in  which  are  contained  the  regulations  to  be  followed  by  engineers, 
conductors,  flagmen,  and  others  engaged  in  the  operation  of  trains, 
is  a  familiar  instance,  where  rules  are  promulgated  in  writing  and 
placed  in  the  hands  of  each  employee.  The  general  authority  given 
to  a  train-dispatcher  to  control  the  movement  of  trains,  with  refer- 
ence to  any  emergency  that  might  arise,  is  an  illustration  of  where 
the  power  to  make  a  rule  applicable  to  a  single  instance  can  be  exer- 
cised. In  such  case  the  train-dispatcher  .'Stands  in  the  shoes  of  the 
railroad  company,  and  tli^  order  of  the  train-dispatcher  is  the  order 
of  the  company.  Pittsburg  Rv  Co.  v.  Henderson  (Ohio),  5  Am.  & 
Eng.  R.  Cas.  529. 

Of  course,  it  is  not  the  master's  duty  to  provide  specific  rules 
for  every  detail  in  the  operation  of  his  business;  and  one  may  be 
in  a  position  where  his  giving  orders  in  reference  to  the  master's 
business  would,  on  account  of  their  character,  not  be  orders  eman- 
ating from  the  master.  But  whenever  the  order  is  of  a  grave  nature 
relating  to  the  operation  of  dangerous  machinery,  and  is  a  general 
order  to  be  followed  under  all  circumstances,  and  not  merely  casual 
or  in  reference  to  a  mere  matter  of  trivial  detail,  amounting  merely 
to  an  act  of  supervision  onlv,  the  order  must  be  construed  as  the 
order  of  the  master,  and  not  the  order  of  a  mere  fellow-servant. 
When  a  servant  seeks  to  hold  a  master  liable  on  account  of  his  hav- 
ing obeyed  an  order  given  by  another  servant,  it  is  incumbent  on 
him  to  show,  not  only  that  the  order  was  given  and  obeyed,  biit  that 
the  order  was  of  such  character  as  that  the  instruction  in  retercnce 
thereto  must  frMii  the  nature  of  things,  have  emanated  from  the 
master  and  that  the  servant  who  gave  it  was  authorized  by  the  mas- 
ter to  give  the  order  in  the  particular  case,  or  that  the  scope  of  his 
emplo)nnent  was  such  that  his  authority  extended  to  giving  general 
orders  of  that  character. 


64  APPENDIX. 

In  the  present  case  there  was  evidence  that  N.  S.  West  was 
superintendent  over  the  hands  of  the  DubUn  Cotton  Mills,  and  that 
he  was  the  overseer.  This  alone  was  not  sufficient  to  show  that  he 
was  the  vice-principal.  The  evidence  showed  further  that  he  had 
charge  of  the  work  and  the  hands,  and  that  the  plaintiff  was  working 
under  his  orders.  This  alone,  without  evidence  as  to  what  occurred 
or  what  brought  about  the  injury,  would  probably  not  be  sufficient 
to  show  that  West  was  the  vice-principal.  It  would  depend  alto- 
gether upon  the  character  of  the  order.  In  other  words,  before  the 
servant  would  take  rank  as  a  vice-principal  of  the  master,  it  must 
appear  that  he  is  vested  with  authority  to  give  those  orders  which 
the  servant  of  a  master  is  entitled  to  regard  as  coming  from  the 
master  himself.  Orders  in  reference  to  mere  matters  of  trivial  de- 
tail amounting  merely  to  supervision  in  the  operation  of  the  business 
may  be  properly  entrusted  to  a  servant,^  if  the  master  has  been 
free  from,  negligence  in  the  employment  of  the  servant  to  whom  he 
entrusts  this  duty ;  that  is,  many  orders  in  the  operation  of  a  business 
are  part  of  the  mere  supervision  of  the  work.  But  when  there  is 
an  order  in  reference  to  the  mode  and  manner  in  which  the  work 
of  the  master  shall  be  performed,  and  this  work  consists  in  the  use 
of  or  work  about  a  dangerous  machine,  it  is  to  be  treated  as  the 
command  of  his  master,  when  emanating  from  one  representing  the 
master,  although  it  may  come  through  the  mouth  of  a  person  who, 
under  other  circumstances,  is  merely  a  co-laborer. 

The  duty  of  the  plaintiff  was  to  clean  the  machine  at  stated 
times.  This  work  could  be  done  either  with  the  machine  running 
or  with  it  stopped.  There  was  a  latent  danger  to  be  encountered 
when  the  work  was  done  with  the  machine  running.  The  plaintiff, 
according  to  the  testimony,  did  not  know  of  this  latent  danger. 
The  evidence  authorized  a  finding  that  the  master  either  knew  of  it, 
or  could  have  known  of  it  by  the  exercise  of  ordinary  diligence.  As 
the  evidence  shows  that  the  superintendent  ordered  the  plaintiff,  in 
positive  terms,  to  clean  the  machine  while  it  was  running,  it  was  for 
a  jury  to  determine  whether  he  was  in  the  performance  of  an  act 
which  was  a  part  of  the  mode  and  manner  of  the  master's  business, 
and  whether  the  command  of  the  superintendent  was,  under  all  the 
circumstances,  the  command  of  the  master.  Whether  the  danger 
in  the  performance  of  the  act  in  the  manner  directed  by  the  super- 
intendent was  not  so  obvious  to  the  plaintiff  that  he  was  guilty  of 
negligence  in  obeying  the  command  was  also  a  question  for  the  jury. 
It  must  be  kept  in  mind  that  the  order  involved  in  this  case  was  not 
a  mere  direction  for  one  occasion  only,  but  it  was  a  rule  laid  down 
for  observance  by  the  servant  to  be   followed  at  stated  intervals. 


'  "Givin-r  commands  as  to  the  proper  manner  of  performing  work  is  not 
ordinarily  one  of  those  absokite  personal  functions  which  the  master  alone 
c-in  exercise"  Gillett.  J.,  Dill  v.  Marmon,  164  Ind.  507  (1905).  P-  52i.  A 
command  is  a  transitory  act  which  the  employer  has  no  chance  to  supervise. 
Tt  is  not  a  permanent  condition  of  land  or  machinery,  or  the  abiding  incom- 
petence of  an  employee."  Holmes.  J..  Hallcck  v.  Dcering,  161  Mass.  469 
(1804)  p  471  "The  master  does  not  insure  his  employees  against  each 
other  nor  is  he  bound  to  supervise  and  direct  every  detail  of  their  labor. 
Williams,  J.,  Ross  v.  Walker,  139  Pa.  42  (1891),  p.  49^ 


CHICAGO  &  ALTON   K.   R.  CO.  V.  CAROLINE  MAY,  ADMX.  65 

and  was  of  such  nature  that  the  plaintiff,  from  all  the  circumstances, 
had  the  right  to  presume  that  in  the  superintendent's  order  he  heard 
the  voice  of  the  master.  He  not  only  heard  the  voice  of  the  master, 
but  he  heard  it  speaking  in  reference  to  a  matter  which  should  be 
controlled  by  his  voice.  The  evidence  proved  the  allegations  of  the 
petition  substantially  as  laid,  and  it  was  error  to  grant  a  nonsuit. 
Judgement  reversed. - 


CHICAGO  &  ALTON  R.  R.  CO.  v.  CAROLINE  MAY,  ADMX. 

Supreme  Court  of  Illinois,  1884.     108  ///.  288. 

MuLKEY,  J. :  May,  the  plaintiff  decedent,  was  engaged,  in  the 
course  of  his  employment  in  the  service  of  the  defendants,  as  one  of 
a  gang  of  men  in  removing,  under  the  direction  and  control  of  one 
Fricke,  the  defendant's  foreman  of  its  lumber  yard,  lumber  from 
the  yard  to  the  car  shops.  The  lumber,  consisting  of  a  pile  of  heavy 
oak  planks,  some  sixteen  feet  in  length,  had  already  been  placed 
on  a  small  light  car  called  a  "rubble-car," — both  the  car  and  lumber 
were  covered  with  sleet.  A  large  box  car  stood  on  the  track  and  had 
to  be  moved  before  the  lumber  could  be  moved.  To  do  this  it  was 
necessary  to  push  both  cars  back  some  distance  to  a  point  beyond  the 
switch.  For  this  purpose  Fricke  ordered  the  men  to  push  the  box 
car  against  the  "rubble-car,"  which  "shoved"  the  lumber  so  far  off 
the  car  that  it  would  have  fallen  had  not  the  bumpers  of  the  box 
car  held  it  up.  Having  pushed  both  cars  in  this  way  past  the 
switch,  Fricke  ordered  the  men  to  leave  the  small  car  and  push  the 
box  car  out  of  the  way.  Two  of  the  men  went  to  the  rear  of  the 
"rubble-car"  to  hold  the  kumber  while  the  others  started  to  push  the 
box  car,  and,  as  soon  as  they  were  far  enough  apart,  some  of  them, 
including  May,  went  in  between  the  two  to  push  with  more  effect. 
Fricke  then  called  the  two  men,  who  were  holding  the  lumber  in  the 
"rubble-car,"  to  come  and  help  push.  They  warned  him  that  the 
lumber  would  fall,  but  he  repeated  the  order,  saying,  "Let  the  lum- 
ber go  to  the  devil."  The  order  was  obeyed,  the  lumber  fell  to  the 
ground,  tilting  up  the  end  of  the  "rubble-  car,"  and  driving  it  forward 
against  the  end  of  the  box  car  and  catching  May,  who  had  no  time 


'In  both  Bloyd  v.  Raikvay,  ante,  and  Augusta  v.  Owens,  11  Ga.  464 
(1900),  the  fact  is  emphasized  that  the  negligence  was  that  of  an  employee 
who  himself  took  no  part  in  the  manual  labor  of  the  workmen,  but  whose  sole 
function  was  to  direct  and  control  those  engaged  in  the  actual  labor. 

But  see  Peckham,  J.,  A^.  P.  R.  R.v.  Peterson,  162  U.  S.  346  (1896),  p. 
2iS7-  "The  mere  fact  that  he  (the  negligent  foreman)  did  not  actually  handle 
a  shovel  or  pick  is  an  unimportant  matter.  Where  more  than  one  man  is 
engaged  in  doing*  any  particular  work,  it  becomes  almost  a  necessity  that 
one  should  be  boss  and  the  other  subordinate,  but  both  are,  nevertheless,  fellow 
servants." 

That  a  person  directing  a  piece  of  work  has  the  power  to  discharge  and 
employ  those  who  do  the  work  is  not  as  a  rule  regarded  as  of  itself  making 
him  a  "vice-principal";  see  Staebler  v.  U'arren-Fhret  Co.,  223  Pa.  129  (1909). 


56  APPENDIX. 

to  escape,  between  the  "rubble-car"  and  the  bumpers  of  the  box 
car,  thereby  inflicting  the  injuries  of  v/hich  he  subsequently  died/ 

The  instruction  claimed  to  be  most  objectionable,  and  the  only 
one  specially  noticed  in  appellant's  brief  in  this  court  is  as  follows:  ' 

"2.  That  one  servant  of  a  corporation  to  whom  the  corporation 
delegates  the  power  of  hiring  and  of  discharging  other  servants, 
and  in  whom  the  corporation  vests  the  sole  control  and  direction  of 
such  other  servants  in  and  about  the  work  which  they  may  be  ordi- 
narily required  to  do,  is,  as  to  such  servants  whom  he  so  hires,  dis- 
charges and  controls,  the  representative  of  the  master,  and  is  not 
a  fellow-servant,  and  is  not,  under  such  facts,  if  proven  by  the  evi- 
dence, in  the  same  line  of  employment  as  the  servants  whom  he  so 
controls." 

The  rule  on  the  subject,  as  we  understand  it,  is  this :  The 
mere  fact  that  one  of  a  number  of  servants  who  are  in  the  habit  of 
working  together  in  the  same  line  of  employment,  for  a  common 
master,  has  power  to  control  and  direct  the  actions  of  the  others 
with  respect  to  such  employment,  will  not  of  itself  render  the  master 
liable  for  the  negligence  of  the  governing  servant,  resulting  in  an 
injury  to  one  of  the  others,  without  regard  to  other  circumstances. 
On  the  other  hand,  the  mere  fact  that  the  servant  exercising  such 
authority,  sometimes,  or  generally,  labors  with  the  others  as  a 
common  hand,  will  not  of  itself  exonerate  the  master  from  liability 
for  the  former's  negligence  in  the  exercise  of  his  authority  over  the 
others.  Every  case,  in  this  respect,  must  depend  upon  its  own 
circumstances.  If  the  negligence  complained  of  consists  of  some  act 
done  or  omitted  by  one  having  such  authority,  which  relates  to  his 
duties  as  a  co-laborer  with  those  under  his  control,  and  which  might 
just  as  readily  have  happened  with  one  of  them  having  no  such 
authority,  the  common  master  will  not  be  liable.  For  instance,  if  the 
section  boss  of  a  railway  company,  while  working  with  his  squad 
of  men  on  the  company's  road,  should  negligently  strike  or  other- 
wise injure  one  of  them,  causing  his  death,  the  company  would  not 
be  liable;  but  when  the  negligent  act  complained  of  arises  out  of 
and  is  the  direct  result  of  the  exercise  of  the  authority  conferred 
upon  him  by  the  master  over  his  co-laborers,  the  master  will  be 
liable.  In  such  case  he  is  not  the  fellow-servcnt  of  those  under 
his  charge,  with  respect  to  the  exercise  of  such  power,  for  no  one  but 
himself,  in  the  case  supposed,  is  clothed  with  authority  to  command 
the  others. 

When  a  railway  company  confers  authority  upon  one  of  its 
employees  to  take  charge  and  control  of  a  gang  of  men  in  carrying 
on  some  particular  branch  of  its  business,  such  employee,  in  govern- 
ing and  directing  the  movement  of  the  men  under  his  charge  with 
respect  to  that  branch  of  its  business,  is  the  direct  representative  of 
the  companv  itself,  and  all  commands  given  by  him  within  the  scope 
of  his  authority  are,  in  law,  the  commands  of  the  company,  and  the 
fact  that  he  may  have  an  immediate  superior  standing  between  him 


.  ^  The    facts    as   given   are    condensed    from    those    given    in    the    opinion. 
Sheldon,  C.  J.,  Scott  and  Craig,  JJ.,  dissent  in  an  opinion  which  is  omitted. 


CHICAGO  .S:  ALTON  K.  K.  CO.  V.   CAROLIXK  MAY,  a:)MX.       6/ 

and  the  company  makes  no  difference  in  this  respect.  In  exercising 
this  power  he  does  not  stand  upon  the  same  plane  with  those  under 
his  control.  His  position  is  one  of  superiority.  When  he  gives  an 
order  within  the  scope  of  his  authority,  if  not  manifestly  unreason- 
able, those  under  his  charge  are  bound  to  obey,  at  the  peril  of  losing 
their  situations,  and  such  commands  are,  in  contemplation  of  law, 
the  commands  of  the  company,  and  hence  it  is  held  responsible  for 
the  consequences.  These  views  are  in  strict  accord  with  all  that  is 
said  in  the  Aloranda  case,  to  which  such  frequent  references  have 
been  made.  It  is  believed,  moreover,  that  the  test  here  suggested, 
and  recognized  in  many  of  the  cases,  will  reconcile  many  of  the  ap- 
parently conflicting  decisions  of  the  courts  of  this  country  which 
have  declined  to  follow  the  English  rule  on  this  subject,  and  the 
principle,  though  not  formally  announced  heretofore,  is  the  logical 
result  of  our  own  adjudications. 

Testing  the  present  case  by  the  rule  here  announced,  the  com- 
pany is  clearly  liable,  for  it  is  manifest  that  May's  death  was  the 
direct  result  of  an  improper  and  inconsiderate  order  that  no  one 
exercising  ordinary  skill  or  prudence  would  have  given.  It  was 
not  a  mere  careless  act  done  by  him  in  performing  his  work  as  a 
co-laborer  or  fellow-servant,  but  it  was  a  negligent  and  unskillful 
exercise  of  his  power  and  authority  over  the  men  in  his  charge,  for 
which,  as  we  have  alread}^  seen,  the  company  must  be  held  to  an- 
swer. In  support  of  the  general  views  here  expressed  we  cite  the 
following  authorities :  Buckiier  v.  Neiv  York  Central  Ry.  Co.,  2 
Lansing,  506  (49  N.  Y.  672)  ;  Chicago,  Burlington  &  Qnincy  R.  R. 
Co.  V.  McLallen,  84  111.  116;  Lalor  v.  Chicago,  Burlington  &  Quincv 
R.  K.  C,  52  id.  401  :  Mullen  v.  P.  &  S.  M.  Steamship  Co..  78  Pa. 
St.  25 ;  Gonnlv  v.  J'nlcan  Iron  Works,  6X  Mo.  492. 

The  judgment  of  th^  Appellate  Court,  we  think,  for  the  reasons 
stated,  is  right,  and  it  is  therefore  affirmed. 

Judgment  affirmed. - 


-Accord:  Kansas,  Walker  v.  Gillett,  59  Kans.  214  (1898);  Consolidated 
Kansas  City,  etc.,  Co.  v.  Peterson,  8  Kans.  App.  316  (1899)  ;  Louisiana,  Dob- 
son  V.  Ry.  Co.,  52  La.  Ann.  (Part.  II)  1167  (1900);  .Missouri,  DoivUng  v. 
Allen,  74  Mo.  13  (1881)  ;  Foster  v.  R.  R.,  115  Mo.  165  (1892)  ;  Burkard  v.  Rope 
Co.,  217  Mo.  466,  distingui.shing  Grattis  v.  R.  R.  Co.,  153  I\Io.  380  (1900).  ap- 
parently contra:  Nebraska  R.  R.  v.  Finlavson,  16  Neb.  578  (1884"):  Sioux 
Citv.  Etc.,  Rv.  Co.  V.  Smith,  22  Neb.  775  (1888)  :  Ohio,  Cleveland.  Etc..  R.  R. 
V.  keary,  3  Ohio  St.  201  (1854)  ;  Berea  Stone  Co.  v.  Kraft,  31  Ohio  St.  287 
(1877);  Tennessee.  III.  Cent.  R.  R.  v.  S pence,  7:^  Tenn.  173  (1893):  Chatta- 
nooga R.  R.  V.  Lazcson.  loi  Tenn.  406  (1S98)  :  Gann  v.  R.  R.,  ib.  380:  Utah, 
Armstrong  v.  R.  R..  8  Utah,  420  (1893).  In  Kentucky  the  master  is  liable  to 
an  inferior  servant  for  the  gross,  but  not  the  ordinary,  negligenco  of  a 
superior  servant.  Louisville,  etc..  R.  R.,  v.  Collins,  2  Duv.  114  (186=;);  as 
to  what  is  held  to  be  eross  neeliirence  in  the  management  of  a  railroad  tram. 
sec  Greer  v.  R.  R..Q4  Kv.  169  (1893).  and  Chattanooga.  Etc..  R.  R.  v.  Palmer, 

q8  Ky.  382  (1895).         '  .    ,    .  r        ,  V 

The  master,  however,  is  not  liable  to  all  inferior  servants  for  the  nccli- 
"•ence  of  those  of  a  higher  grade,  but  onlv  to  such  as  are  under  the  direction 
and  control  of  the  delinquent.  Pitf.^burgh.  Etc  R.  R.  v  Pevnwey.  17  Ohio 
St  187  (1867)  ;  East  Tenn..  Etc..  R.  R-  v.  Rush.  15  Lea  (Tenn.^  14?  (1885). 
There  is  much  difference'  of  opinion  in  the  above  jurisdictions  as  to 
whether  the  master   is   liable    for   all  misconduct  which   a   superior   servant 


68  APPENDIX. 


RICKS  V.  FLYNN. 

Supreme  Court  of  Pennsylvania,  1900,   196  Pa.  263. 

Mestrezat,  J. :  The  question  raised  by  this  record  requires  us 
to  notice  the  duty  the  master  owes  to  his  servant  and  also  to  deter- 
mine when  an  employee  occupies  the  position  of  a  fellow-servant 
and  not  that  of  a  vice-principal  for  whose  negligence  the  master  is 
liable.  It  is  the  duty  of  the  master  to  provide  his  servants  with  a 
safe  place  in  which  to  work,  with  proper  and  suitable  tools  and 
machinery  with  which  to  perform  their  work,  with  suitable  mate- 
rials, with  reasonably  competent  fellow-workmen  with  whom  to 
work,  and  with  such  instruction  to  the  young  and  inexperienced 
as  may  be  necessary  to  warn  them  against  the  peculiar  dangers 
incident  to  the  kind  of  work  in  which  they  are  engaged:  Prescott  v. 
Ball  Engine  Company,  176  Pa.  459.  Having  done  this,  the  master 
has  discharged  his  whole  duty  to  his  servant  and  is  not  liable  for  any 
injury  the  latter  may  receive  while  in  his  service  by  reason  of  the 
negligence  of  his  co-laborer.  This  doctrine  is  so  well  established 
that  it  needs  the  citation  of  no  authorities  to  sustain  it.  If,  however, 
an  employee  be  placed  in  a  position  to  represent  his  employer  so  as 
to  have  absolute  control  and  entire  charge  of  the  work,  or  a  distinct 
and  separate  branch  of  it,  then,  in  the  performance  of  his  duties  in 
such  representative  capacity,  he  takes  the  place  of  the  employer  and 
his  acts  are  those  of  his  principal.  An  employer  is  likewise  respon- 
sible for  the  acts  of  his  employee  if  he  entrust  him  with  the  per- 
formance of  an  imperative  duty,  absolutely  obligatory  upon  the 
employer.  These  principles,  as  a  result  of  our  cases,  are  concisely 
and  clearly  stated  by  our  Brother  ]^Iitchell  in  Prevost  v.  Citizens'  Ice, 
etc..  Company,  185  Pa.  621,  as  follows:  '"A  vice-principal  for  wdiose 
negligence  an  employer  will  be  liable  to  other  employees  must  be 
either  first,  one  in  whorn  the  employer  has  placed  the  entire  charge  of 
the  business,  or  of  a  distinct  branch  of  it,  giving  him  not  mere 
authority  to  superintend  certain  work  or  certain  workmen,  but  con- 
trol of  the  business,^  and  exercising  no  discretion  or  oversight  of  his 
own ;  or,  secondly,  one  to  whom  he  delegates  a  duty  of  his  own 
which  is  a  direct,  personal  and  absolute  obligation,  from  which  noth- 
ing but  performance  can  reHeve  him."- 


commits  in  furtherance  of  the  master's  business.  The  weight  of  authority 
is  toward  the  view  that  the  master  is  Hable  only  where  such  superior  negli- 
gently exercises  the  authority  conferred  upon  him  and  not  where  he  is 
himself  performing  the  purely  operative  work  of  an  inferior.  Forgarty  v.  St. 
Louis  Transfer  Co..  180  Mo.  490  (1904.  the  opinion  contains  an  exhaustive 
review  of  the  Illinois  and  Missouri  decisions)  ;  Gall  v.  Beckstem.  173  HI;  1^7 
(1898)  ;  Gann  v.  R.  R.,  loi  Tenn.  380  (1898)  ;  Contra.  New  Omaha  Etc.  Co.  v. 
Baldzvin,  62  Xeb.  180  (1901);  Berea  Stone  Co.  y-  Kraft  3i  0\no  St.  287 
(1877)  The  question  seems  not  to  have  been  expressly  decided  in  Kansas  to. 
V.  Peterson,  supra;  Brick  Co.  v.  Shanks,  69  Kans.  306  (1904)- 

'  In  support  of  this  Mitchell.  J.,  cites,  in  the  above  given  case,  .V.  ¥.,  L.  E. 
&■  W.  V.  Bell,  112  Pa.  400  (1886). 


Ross 


*In  support  of  this.  Mitchell.  T..  cites  Lezi:isv.  Seiiert   vi6  Pa.  628  (188/) ', 
y  V.  Walker,  139  Pa.  42  (1891),  and  Prescott  v.  Ball  Engine  Co.,  176  Pa. 


RICKS  V.   ILVNX.  69 

In  the  application  of  this  rule,  however,  the  grade  or  rank  of 
the  servant  for  whose  conduct  the  employer  is  sought  to  be  made 
liable,  is  not  the  test  of  the  employer's  responsibility.  It  is  the 
character  or  nature  of  the  act  of  the  employee  which  causes  the  in- 
jury that  determines  the  liability  of  the  employer.  If  the  act  or 
thing  done  resulting  in  the  injury  to  the  employee  was  a  duty  im- 
posed upon  the  employer,  then  the  negligent  performance  of  it  by 
an  employee  of  any  grade  will  render  the  employer  liable,  but  if  such 
act  was  in  the  line  of  the  ordinary  workman's  duty  as  an  employee, 
then  the  employer  is  not  responsible,  though  the  offending  employee 
was  a  vice-principal  in  charge  of  the  work  generally.^ 


459  (1896).     See  also  Baltimore  and  Ohio  R.  R.  v.  Baugh  and  Crispin  v.  Bab- 
bitt, ante. 

While  dicta  in  many  Pennsylvania  cases  recognize  both  these_  kinds  of 
"vice-principal",  it  would  seem  that,  imtil  1908,  at  least,  the  recognition  of  the 
first  was  more  apparent  than  real,  due  probably  to  respect  for  the  decisions 
of  the  Supreme  Court  of  the  United  States  (see  B.  &  O.  R.  R.  v.  Baugh, 
ante),  and  that  the  master's  liability  actually  depended  solely  upon  the  nature 
of  the  act  negligently  performed  or  of  the  precaution  omitted,  as  in  New 
York,  IMassachus^etts,  New  Jersey,  etc.  Crispin  v.  Babbitt,  ante.  In  every  case 
where  the  master  was  held  liable  for  the  negligence  of  a  "vice-principal"  m 
independent  control  of  a  distinct  department  of  his  business,  the  negligence  lay 
in  his  improper  performance  of  some  one  of  the  master's  absolute  and  per- 
sonal duties.  O'Dozcd  v.  Biirnham,  19  Pa.  S.  C.  464  (1902)  ;  Nczv  v.  Milligati 
27  Pa.  S.  C.  516  (1905)  ;  and  many  later  cases  have  followed  the  principal 
case  in  holding  that  even  a  general  manager,  to  make  his  master  lial)le  for 
his  negligence,  must  not  only  be  acting  within  the  lines  of  his  duties  as  such, 
but  must  be  discharging  some  positive  personal  duty  delegated  to  lum,  as 
manager  or  superintendent,  by  the  master.  Casey  v.  Paving  Co..  198  Pa.  348 
(1901)  ;  Miller  v.  Bridge  Co.,  216  Pa.  569  (^907)  ;  King  v.  ^IcClure.  222  Pa. 
625  (1909).  And  see  the  early  case  of  Mullan  v-.  S.  S.  Co..  78  Pa  25  (1875), 
p.  32.  In  Caldrvell  v.  Hickev.  221  Pa.  545  (1908)  and  Gilbert  v.  Elk  Tanning 
Co..  221  Pa.  176  (1908),  a  idistinct  tendency  is  shown  to  make  the_  master 
liable  for  acts  and  omissions  of  one  in  complete  control  of  the  business  of 
a  sort  for  which  he  would  not  be  liable  had  the  delinquent  been  a  servant  of 
the  same  grade  as  the  one  iniured  or  a  foreman.  Compare  with  Gilbert  v. 
Co.,  supra,  in  which  it  was  held  that  the  company  was  liable,  where  t.ie 
superintendent  having  removed  the  cover  of  a  vat,  m  order  to  use  it,  failed 
to  replace  it,  with  Staebler  v.  Warrcn-Ehrct  Co.,  223  Pa.  129  (1909).  where 
the  foreman  of  a  gang  of  roofers  forbade  them  to  put  up  a  guard  rail  pro- 
vided by  the  master;  and  with  Caldzvell  v.  Hickey,  supra,  where  the  master 
was  held  liable  for  the  neglect  of  its  superintendent  to  see  that  a  mould  which 
was  to  be  constn-ctcd  for  a  casting  and  then  destroyed  was  fit  and  safe  for 
use;  compare  Whittaker  v.  Bent,  167  Mass.  588  ("1897^  and  Ross  v.  Walker, 
139  Pa  4^  C189T).  This  seems  in  line  with  the  intimation  in  manv  cases  (see 
note  3  Gitten  v.  William  Porten  Co..  post)  that  though  the  work  is  such  as 
may  properly  be  entrusted  to  the  discretion  of  the  workmen  themselves,  none 
the' less,  if  the  master  choose  to  assume  the  control  and  direction  of  it  by 
placino-  it  in  char-je  of  one  whose  whole  duty  and  function  is  that  of  super- 
intendence he  makes  himself  liable  for  the  manner  in  which  the  latter  exer- 
cises the  powers  given  to  him. 

'Aceord:  Lindvale  v.  Woods,  41  Minn.  212  ("1889^  "It  follows."  says 
Mitchell  T  p  217  "that  the  same  person  may  occupy  a  dual  capacity  of  vice- 
principal  as  to  some  matters  and  of  fellow  servant  as  to  others.  Hence  if 
the  defendants  had  delegated  to  M  the  duty  of  employing  laborers  for  this 
work  or  of  nroviding  materials  for  the  building  of  this  trestle  and  he  had 
been  guilty  of  negligence"  therein,  "the  defendants  would  be  liable,  for  these 
are  duties  which  the  master  owes  personally  and  absolutely.  But  in  whatever 
he  did  on  the  work  which  was  the  object  of  their  common  employment,  viz.. 


•JO  APPEXSIX. 

In  Ross  V.  Walker,  139  Pa.  49,  the  late  Justice  Williams,  deliv- 
ering the  opinion  of  the  court,  said :  "The  person  who  is  thus  put 
in  the  place  of  the  principal,  to  perform  for  him  the  duties  which 
the  law  imposes,  is  a  vice-principal,  and  quoad  hoc  represents  the 
principal  so  that  his  act  is  the  act  of  the  principal.  This  is  true, 
however,  only  when  and  so  long  as  his  acts  are  in  discharge  of  the 
duties  which  the  principal  owes  to  his  employees.  Beyond  this  line 
he  acts  as  a  \vorkman  and  not  as  a  vice-principal." 

These  principles,  applied  to  the  facts  of  the  case  in  hand,  re- 
lieve it  from  anv  difificultv  of  solution.    If  it  be  conceded  that  Snvder 


building  the  road,  he  was  a  mere  fellow  servant  with  the  laborers,  subject  to 
his  orders,  and  for  his  negligence  in  such  matters  the  defendants  would  not  be 
liable  unless  they  were  negligent  in  employing  him."  Accord:  also  Klochinski 
V.  Shores  Lumber  Co.,  93  Wis.  417  (1896)  ;  Barnicle  v.  Connor,  no  Iowa  238 
(1900)  ;  Deep  Run  Mining  Co.  v.  Fitzgerald,  21  Colo.  533  (1895)  ;  O'Neil  v.  Gt. 
Northern  R.  R.,  80  Minn.  27  (1900)  ;  Pasco  v.  Minneapolis,  etc.,  Co.,  105 
Minn.  132  (1908).  Contra:  Berea  Stone  Co.  v.  Knight,  31  Ohio  St.  287  (1877)  ; 
New  Omaha,  etc.,  R.  R.  v.  Baldivin,  62  Neb.  180  (1901)  ;  Sweeney  v.  R.  R.,  84 
Tex.  i23  (1892),  but  only  for  the  acts  of  one  having  not  only  power  to  direct 
business,  but  also  power  to  engage  and  discharge  employees.  Bryan  v.  R.  R.. 
128  N.  C.  387  (1901). 

The  fact  that  the  plaintiff's  injury  is  due  to  an  act  of  manual  labor 
performed  by  the  superintendent,  of  a  sort  which  might  well  have  been 
left  to  a  mere  workman,  does  not  necessarily  relieve  the  master  from  lia- 
bility. Where  the  injury  results  from  the  improper  and  unsafe  methods  adopted 
by  the  superintendent  for  performing  the  work,  the  master  is  as  much  liable 
where  the  superintendent  himself  takes  part  in  its  execution  as  where  he 
directs  his  subordinates  to  carry  it  out.  "It  would  be  unreasonable  that,  by 
doing  the  careless  act  himself  instead  of  ordering  another,  who  felt  con- 
strained to  obev,  to  do  it,  he  relieved  the  company  from  liability."  Purcell  v. 
R.  R..  119  N.  C.  728  ("1896),  p.  739;  Metropolitan  R.  R.  v.  Skola,  185  111.  454 
(1900),  a  foreman  ordered  a  car  repairer  to  work  under  a  car  upon  a  certain 
repair  track  and  then,  acting  as  motorman.  drove  without  warning  another 
car  on  the  same  track:  Dayharsh  v.  7?.  R..  103  Mo.  570  (1890),  and  Taylor  v. 
R.  R.,  121  Ind.  124  (1889)  ;  somewhat  similar  facts:  Norton  Bros.  v.  Nadebok. 
190  111.  595  (1901),  an  employee  in  charge  of  machinery  having  ordered  his 
assistant  to  put  his  hand  into  it,  started  it  without  warning:  Pittsburgh  Bridge 
Co.  V.  Walker,  170  111.  550  (1897)  ;  Crystal  Ice  Co.  v.  Sherlock,  37  Neb.  19 
(1893)  ;  Chattanooga,  etc..  R.  R.  v.  Laivson.  loi  Tenn.  406  (■1898).  For  an 
extreme  application  of  this  rule  see   Cole  Bros.  v.    JVood.   11   Ind.  App.   37 

(1894). 

There  appears  to  be.  also,  a  distinct  tendency  to  hold  that  where  a  super- 
intendent is  performing  one  of  the  master's  positive  duties,  the  latter  is  liable 
not  only  if  by  reason  of  some  neglect  of  the  superintendent  the  master's 
duty  is  not  adequately  performed  and  so  the  servant  is  deprived  of  that 
protection  which  he  had  a  right  to  expect,  but  also  if  the  superintendent  is 
guilty  of  any  negligent  act,  though  manual  and  operative,  while  engaged  in 
performing  the  master's  duties  delegated  to  him.  So  in  Latsha  v.  Transit 
Co.,  222  Pa.  201  C1908),  it  was  held  that  a  superintendent  who,  acting  himself 
as  motorman,  took  a  car  out  to  test  it,  made  his  master  liable  for  his  negli- 
gence in  driving  it.  Hess  v.  Adamant.  66  Minn.  78  (1896"),  and  see  Kentucky, 
etc.,  Co.  V.  Nance,  165  Fed.  44  (C.  C.  A.  6th  Circ,  1908).  In  Willihan  v. 
National  M'heel  Co..  128  Mich.  I  ri90i),  a  distinction  is  drawn  between 
neorligent  acts  done  in  testing  machinery  for  the  purpose  of  ascertaining  if 
it  is  safe  for  the  employee's  use,  in  which  case  the  master  is  liable,  and  those 
done  while  testing  it  to  see  if  it  is  efficient,  when  he  is  not,  but  see,  contra, 
Latsha  v.  R.  R..  supra. 

In  Shumway  v.  Wakvorth,  etc.,  Co.,  98  Mich.  411  (1894),  it  is  stated  that 
where  the  superintendent  is  engaged  in  performing  an  act  which  he  had  the 
right  to  perform  only  by  virtue  of  his  authority  as  superintendent,  the  master 


RICKS  V.   KLYNN.  Jl 

was  a  vice-principal  under  his  general  employment  by  the  defend- 
ants, which  is  very  doubtful,  it  is  manifest  from  the  indisputable 
testimony  that  his  negligent  act  which  caused  the  plaintiff's  injuries 
was  performed  when  he  was  discharging  the  duties  of  a  co-worker 
of  the  plaintiff  and  not  the  personal  and  absolute  duties  imposed 
upon  his  principal.  The  defendants  provided  proper  and  safe  ap- 
pliances with  which  to  remove  the  stone  from  the  car  to  the  retaining 
wall  and  competent  workmen  were  employed  to  do  the  work.  There 
is  no  allegation  of  incompetency  on  the  part  of  the  masons,  engi- 
neer, laborers  or  the  employees  whose  duty  it  was  to  drill  the  hole 
in  the  stone  and  to  place  the  dogs  on  the  stone.  They  were  ad- 
mittedly all  competent.  Instead,  however,  of  permitting  the  em- 
ployees engaged  in  the  work  to  perform  their  respective  duties, 
Snyder  assumed  the  duty  of  a  co-worker  of  the  plaintiff  and  placed 
the  tongs  on  the  stone  so  improperly  and  carelessly,  that  the  stone 
fell  from  their  grasp  and  injured  the  plaintiff.  The  work  he  did 
was  not  in  the  line  of  his  duty  as  representing  his  principal  but  was 
strictly  that  of  a  fellow-servant  of  the  plaintiff.  For  his  negligent 
act,  therefore,  while  performing  this  service,  the  defendants  are  not 
responsible. 

The  contention  of  the  appellee  that  the  drilling  of  the  holes  in 
the  stones  was  an  absolute  duty  imposed  on  the  defendants  is  not 
tenable.  ,The  holes  in  which  the  tongs  were  to  be  inserted  in  making 
the  removal  of  the  stones  were  not  an  appliance  or  tool  to  be  fur- 
nished by  the  master,  but  simply  a  means  of  adjusting  the  machinery 
to  the  material  being  removed.  The  stones  were  shipped  on  cars  to 
the  place  where  they  were  to  be  used.  An  employee  in  the  gang  un- 
der Snyder  drilled  the  holes  in  the  stones,  as  part  of  the  work  re- 
(|uired  to  be  done  in  their  removal.  This  employee,  designated  in 
the  testimony  as  the  "stohe  man",  was  engaged  with  the  other  em- 
ployees of  Snyder's  gang  in  removing  the  stones  from  the  cars  and 
depositing  them  on  the  wall.     He  was  a  co-workman  of  the  other 


is  liable  for  any  negligence  in  his  performance  of  it,  but  compare  the  facts 
with  those  in  Hess  v.  Adamant  Co.,  supra. 

So  statutes  making  the  master  h'able  for  the  negligence  of  an  employee 
"entrusted  with  and  exercising  superintendence"  and  "whose  whole  duty  is 
that  of  superintendence" — Massachusetts,  Laws  of  1887,  ch.  270,  §  i,  subsection 
2;  Alabama.  Civil  Code,  1886.  §  2590  (2);  Colorado.  Laws  of  1893,  ch.  77 
§  T  (2)  ;  New  York,  Laws  of  1902,  ch.  100,  §  i  (2) — have  been  construed  to 
make  the  master  liable  only  where  the  negligent  act  was  not  only  done  by 
the  superintendent,  but  was  a  negligent  "act  of  superintendence."  Guilmartin 
V.  Sohvay  Process  Co..  189  N.  Y.  490  (1907).  16  L.  R.  A.  N.  S.  146,  with 
valuable  note;  Freeman  v.  Steel  Co..  137  .\!a.  481  C1Q02)  ;  Cashmau  v.  Chase, 
T56  Mass.  342  (1892);  Joseph  v.  Whitney  Co.,  177  Mass.  176  (1900"):  Hoff- 
man V.  Holt,  186  Mass.  572  ('T904');  Refining  Co.  v.  Peterson.  8  Kans.  App. 
316    (1899). 

So,  too,  it  is  helcf  that,  where  the  superintendent  is  negligent  m  dircctmg 
and  controlling  the  work,  the  master  is  none  the  less  liable,  under  such  stat- 
utes though  the  superintendent  himself,  alone  or  in  conjunction  with  the 
workmen  under  him,  manually  carries  out  his  improper  place.  McKenna  v. 
Gould  Wire  Co.  197  Mass.  406  (1908):  McPhee  v.  Nezv  England  Co..  188 
Mass  141  (190s');  Carlson  v.  Co..  113  App.  Div.  (N.  Y.)  1036  (1906):  Mc- 
Bride  v.  Co.,  95  App.  Div.  (N.  Y.)  336  (1904)  ;  RipPy  v.  R.  R.,  80  S.  C.  539 
(1908). 


72 


.\iTi:xni.\. 


servants  of  the  gang,  having  the  same  master  and  being  engaged  in 
the  same  common  employment.  The  thing  to  be  done  by  Snyder's 
gang  of  workmen  was  the  erection  of  the  wall,  which  included  the 
removal  of  the  large  stones  from  the  cars  to  the  wall.  The  derrick, 
engine  and  tongs  were  the  instruments  to  be  used  in  effecting  this 
removal  and  they  were  suitable  for  the  work.  Placing  the  tongs  on 
the  stones  in  a  manner  to  secure  their  safe  removal  was  the  duty 
of  the  men  who  were  on  the  car  for  that  purpose.  In  this  particu- 
lar instance,  Snyder  took  the  place  of  the  men  employed  for  that 
purpose,  and  if  he  hooked  the  tongs  on  the  stone  in  an  improper 
manner,  either  by  failing  to  insert  them  in  the  holes  drilled  for  the 
purpose  or  otherwise,  so  as  to  make  the  removal  of  the  stone  unsafe, 
it  was  not  his  act  as  a  vice-principal  but  as  a  subordinate  employee 
whose  duty  it  was  to  perform  the  service.  See  Ross  v.  Walker,  su- 
pra, and  Prcscott  v.  Ball  Engine  Co.,  supra. 

Mr.  Justice  Dean,  dissenting:  In  my  opinion  this  judgment  is 
wrong;  it  is  not  vindicated  by  reason  or  authority.  The  evidence 
of  plaintiff  tended  to  establish  the  fact  that  Snyder,  under  whose 
supervision  this  part  of  the  work  was  being  done,  was  there  as  the 
representative  of  and  in  place  of  his  employers,  these  defendants.  On 
this  evidence,  under  all  the  authorities,  he  was  a  vice-principal  and 
his  employers  are  answerable  for  his  negligence. 

Assume  that  there  was  some  conflict  in  the  evidence,  still  the 
question  was  one  of  fact  to  be  determined  by  the  jury.  If  the  evi- 
dence of  plaintiff  be  believed,  and  the  jury  in  this  case  did  believe 
it,  this  man  Snyder  was  neither  fitted  by  temper  nor  discretion  for 
such  a  responsible  position;  one  where  the  lives  and  limbs  of  work- 
men depended  on  prudent  management;  by  his  gross  mismanage- 
ment and  recklessness  the  plaintiff  was  seriously  injured.  Why  should 
not  those  who  placed  such  a  man  in  such  a  position,  with  all  the 
unchecked  powers  of  an  employer,  be  held  responsible  for  his  neg- 
ligence? He  was  no  more  a  fellow-workman  of  plaintiff  than  the 
employers  themselves.  The  tendency  to  exempt  employers  from 
just  responsibility  for  the  negligence  of  supervisors  and  bosses  to 
whom  they  entrust  such  grave  duties  is  in  my  opinion  too  pro- 
nounced, and  will  lead  to  consequences  which,  if  not  now  clearly 
foreseen,  can,  with  very  reasonable  certainty,  be  conjectured.  I  dis- 
sent  from  the  judgment. 


(b)   Duty  to  Employ  Competent  Servants. 


REISER  V.   PENNSYLVANIA   CO. 
Supreme  Court  of  Pennsylvania,  1892.     152  Pa.  38. 

Justice  McCollum  :  Adam  Reiser  was  in  the  employ  of  the 
Pennsylvania  Company  as  a  fireman,  and  the  proximate  cause  of 
the  collision  in  which  his  life  was  taken,  was  the  negligence  or  in- 
competency of  W.  W.  Crossman.  who  was  a  station  agent  and 
telegraph   operator  in   the  employ  of  the   same  company,   and   his 


REISKU  Z'.    I'KNNSVLVANIA   CO.  J^ 

fellow  sen-ant.  There  was  evidence  tending  to  show  that  Cross- 
man  was  not  properly  qualified  for  the  place  he  occupied,  but  this 
alone  was  not  sufificient  to  charge  the  company  with  negligence 
in  employing  him  or  in  retaining  him  in  its  service.  It  should  also 
appear  that  the  company  knew  or  in  the  exercise  of  reasonable  dili- 
gence should  have  known  that  he  was  incompetent  to  discharge 
the  duties  of  the  position  to  which  he  was  assigned.  An  efifort 
was  made  to  affect  the  company  with  knowledge  of  his  incapac- 
ity, and  the  result  of  it  is  found  in  the  testimony  of  G.  L.  Camp- 
bell, Jacob  E.  Swap  and  G.  D.  Gilson.  Campbell,  who  was  in  the 
employ  of  the  Pennsylvania  Company  at  Albion  as  station  agent 
and  telegraph  operator  for  some  time  prior  to  July,  1885,  testified 
that  Grossman  was  in  his  office  from  the  spring  of  1884  to  the  first 
of  January,  1885,.  for  the  purpose  of  learning  and  practicing  teleg- 
raphy, and  that  when  he  left  it  he  was  not  a  skillful  operator.  He 
also  testified  that  the  telegraph  operator  at  Pittsburgh,  and  Per- 
due, the  chief  train  dispatcher,  wished  him  "to  keep  that  cub 
(meaning  Grossman)  off  the  line."  He  does  not  state  how,  when 
or  to  whom  this  wish  was  expressed,  or  what  reason,  if  any,  was 
given  for  it.  He  admitted,  however,  that  he  kept  Grossman  in  his 
office  in  violation  of  a  rule  of  the  company,  and  it  is  not  strange 
that  his  fellow  servants  "wished"  him  to  comply  with  a  reasonable 
regulation  established  by  their  common  employer.  Jacob  E.  Swap 
testified  that  directly  after  Grossman  was  put  at  Wheatland  as 
station  agent,  he  said  to  Perdue  "what  are  you  doing  with  that 
noodle  up  at  Wheatland?"  That  Perdue  inquired  what  he  meant, 
and  he  replied,  "Grossman,  the  ageni  there,  he  will  get  you  into 
trouble  yet;  he  don't  know  what  he  is  d,oing  half  the  time."  He 
also  testified  that  Grossman  "was  very  flighty  in  his  disposition 
and  was  rattled  in  his  b\isiness,"  and  that  he  thought  he  was  in- 
competent. Gilson  was  of  opinion  that  Grossman  was  not  qualified 
for  the  place  he  filled,  although  he  would  not  say  he  was  an  un- 
skilled operator.  This  is  the  evidence  relied  on  by  appellant  to 
show  that  the  company  knew  Grossman  was  incompetent  at  the 
time  it  employed  him,  or  retained  him  in  its  service  after  notice  of 
his  incompetency.  It  should  be  stated  in  this  connection  that  Camp- 
bell was  the  only  witness  whose  knowledge  of  Grossman's  alleged 
incapacity  antedates  his  employment  by  the  Pennsylvania  Com- 
pany, and,  this  knowledge  relates  to  a  period  several  months  prior 
to  such  employment.  On  this  branch  of  the  case  the  company 
might  have  relied  on  the  presumption  that  it  exercised  due  care  in 
the'  selection  of  its  servant  whose  negligence  caused  the  collision, 
because  Campbell's  evidence  was  insufficient  to  rebut  it.  But  it  did 
not  do  so.  It  showed  by  testimony  which  was  not  disputed  that  such 
care  was  in  fact  .exercised.  Did  the  company  have  notice  while 
Grossman  was  in  its  service  that  he  was  incompetent?  We  think 
not,  unless  notice  to  Perdue  was  notice  to  the  company.  It  is  con- 
tended by  the  appellant  on  the  authority  of  Lczns  ct  al.  v.  Scifcrt, 
116  Pa.  628.  that  Perdue  was  a  vice-principal,  and  that  his  knowl- 
edge of  the  incompetency  of  the  station  agents  and  telegraph  oper- 
ators in  the  service  of  the  company  must  be  considered  as  its  know!- 


74  APPENDIX. 

edge.  This  might  be  so  if  he  was  clothed  with  the  power  of  em- 
ploying and  discharging  such  servants.  But  he  was  not  charged 
by  the  company  with  its  duty  in  reference  to  the  selection  and 
retention  of  its  employees.  To  the  extent  that  he  was  the  repre- 
sentative of  the  company  in  the  performance  of  a  positive  duty  il 
owed  to  its  servants,  it  is  responsible  to  them  for  his  negligence, 
but  beyond  that  it  is  not.  The  contention  of  the  appellant  that  the 
knowledge  of  Perdue  respecting  the  qualifications  of  Grossman  was 
the  knowledge  of  the  company  finds  no  support  in  Lewis  v.  Seifert, 
supra.  In  that  case  the  company  was  held  liable  for  an  injury  to 
an  employee  caused  by  the  negligence  of  its  representative  in  the 
performance  of  a  duty  it  owed  to  its  servants.  In  this  case  the 
death  of  Reiser  was  attributable  to  the  negligence  of  Grossman 
who  was  his  fellow  servant,  and  as  the  company  was  not  in  default 
in  employing  him,  or  in  retaining  him  in  its  service,  it  is  not  re- 
sponsible for  the  consequences  of  his  negligent  act.^ 


'  There  is  a  practical  unanimity  of  decision  throughout  the  United  States 
that  the  duty  of  employing  a  sufficient  number  of  competent  servants  is 
both  continuous  and  nondelegable.  FUke  v.  R.  R.,  53  N.  Y.  549  (1873)  ; 
Laning  v.  R.  R..  49  N.  Y.  521  (1872),  and  see  §§  572-5-3.  Labatt  on  Master 
and  Servant.  In  England,  at  least  before  the  Employers'  Liability  Act  of  1880, 
had  not  merely  directly  altered  the  law  but  had  indirectly  influenced  judicial 
opinion,  this  duty,  like  all  others,  was  satisfied  by  committing  it  to  a  compe- 
tent manager  or  superintendent. 

If  a  sufficient  number  of  competent  workmen  are  employed  the  assign- 
ment of  them  to  any  particular  piece  of  work  is  a  matter  of  mere  operative 
detail,  and  a  foreman  in  so  doing  acts  as  a  servant  and  not  as  one  engaged 
in  performing  a  personal  absolute  duty  owed  by  the  master.  Hilton  v.  Fitch- 
burg  R.  R.,  73  N.  H.  116  (1904)  ;  Hussey  v.  Coger,  112  N.  Y.  614  (1889),  but 
see,  contra,  Brozvn  v.  Rome  Factory  Co.,  5  Ga.  App.  142  (1908),  one  of  a 
gang  of  men,  engaged  in  moving  a  heavy  ladle  of  molten  iron,  called  away, 
leaving  the  force  employed  dangerously  insufficient,  and  Kronzer  v.  Spenccr- 
Kellogg  Co.,  124  N.  W.  6  (Minn.,  1910),  where  it  was  held  that  an  employee 
to  whom  was  left  the  determination  of  the  competency  of  a  workman  to 
perform  a  particular  piece  of  work,  acted  as  vice-principal  in  assigning  such 
workman  thereto. 

In  Pennsylvania  evidence  of  previous  misconducts  of  the  servant  is  held 
inadmissible  to  show  that  his  employer  had  notice  of  his  incompetency.  Only 
his  general  reputation  for  competency  or  incompetency  is  admitted.  Frazicr 
V.  R.  R.,  38  Pa.  104  (i860),  but  see  Huntingdon,  etc.,  R.  R.  v.  Decker.  82  Pa. 
119  (1876),  and  in  Massachusetts  it  is  rejected  because  of  its  tendency  to 
introduce  a  multiplicity  of  collateral  issues.  Hatt  v.  Nay.  144  Mass.  t86 
(1887)  :  Connors  v.  Morton.  160  Mass.  333  (1894").  In  general,  however,  such 
evidence  is  held  admissible.  Baulec  v.  R.  R..  59  N.  Y.  356  ^1874)  ;  Pittsburgh. 
etc.,  R.  R.  V.  Ruby,  38  Ind.  294  (1871).  No  servant,  however,  should  be 
deemed  incompetent  and  unfit  to  be  employed  or  retained  because  of  one  or 
even  more  acts  of  casual  inadvertence.  Baulec  v.  R.  R..  supra;  Baltimore 
Elevator  Co.  v.  Neal.  63  Md.  438  (t886^  :  Kellogg  v.  Stephens  Co..  125  Mioh. 
222  (1900).  and  cases  cited  note  3:  Labatt.  Master  and  Servant.  §  188.  But 
a  single  act  of  misconduct  may  be  of  such  a  reckless,  wanton  or  malicious 
character  as  to  show  the  servant  guilty  thereof  to  be  totally  unfit  for  em- 
ployment. Baulec  v.  R.  R.,  supra  (semblc)  :  Wabash,  etc.,  R.  R.  v.  Brow, 
65  Fed  941  (1895)  ;  or  may  show  him  to  be  physically  unsuited  for  the  work 
committed  to  him.    B.  &  O.  R.  R.  v.  Camp,  65  Fed.  952  (1895)- 


MURPin'  Z'.   KDSTOX  c-v   ALrSAXV   K.   R.   CO.  75 


(c)   Duty  to   Provide   Safe    Instrumentalities    for    Work    and 
Safe  Place  in    Which    to  Work. 


MURPHY  V.  BOSTON  &  ALBANY  RAILROAD  COMPANY. 
Court  of  Appeals  of  N.  Y.,  1882.    88  A^.  Y.  Appeals  Reps.  146. 

Andrews,  C.  J.  :^  The  boiler  of  the  defendants'  locomotive 
"Sacramento"  exploded  while  in  the  repair  shop  of  the  company  at 
East  Albany,  killing  Francis  Murphy,  the  plaintiff's  intestate,  who 
was  engaged  at  the  time  by  the  direction  of  the  master  mechanic 
in  setting  the  safety  valve  so  as  to  allow  the  standard  pressure. 
The  locomotive  had  been  taken  to  the  shop  for  repairs  some  two 
weeks  before  the  explosion,  having  been  reported  by  the  engineer 
as  in  bad  order. 

The  locomotive  had,  in  accordance  with  the  usual  practice,  been 
put  into  the  hands  of  the  boilermakers,  who  were  competent  and 
skillful  mechanics,  for  examination  and  repair;  they  had  reported 
to  the  master  mechanic  that  the  locomotive  was  "all  right,"  and  it 
was  then,  after  passing  through  the  hands  of  the  machinists,  turned 
over  to  Murphy  and  another  mechanic,  who  were  directed  to  set  the 
safety  valve,  which  was,  as  usual,  the  last  thing  to  be  done  before 
putting  the  engine  on  the  road.  On  examination  of  the  boiler  of 
the  "Sacramento"  after  the  explosion,  defects  therein  were  found 
and  the -evidence  tended  to  show  that  these  defects  had  caused  the 
explosion  and  that  they  would  have  been  discovered  by  the  boiler- 
makers  if  they  had  performed  their  duty  to  make  thorough  inspec- 
tion of  the  boiler,  with  a  view  to  ascertain  whether  any  defects 
existed.  The  judge  nons^iited  the  plaintiff,  and  it  must  be  assumed 
that  the  negligence  of  the  boilermakers  was  one  of  the  efficient 
causes  of  the  accident. 

Upon  these  facts  the  question  arises,  whether  the  company  is 
liable  for  the  death  of  Murphy,  resulting  from  the  negligence,  pri- 
marily, of  the  boilermakers.  They,  and  the  intestate,  were  co- 
servants  of  the  defendant,  and  it  is  the  general  rule  of  law  that  the 
master  is  not  responsible  to  one  servant  for  an  injury  occasioned 
by  negligence  of  a  co-servant  of  the  common  employer.  To  this 
rule  there  are  two  well-defined  exceptions:  first,  where  the  serv- 
ant, whose  negligence  caused  the  injury,  was  an  unfit  and  incompe- 
tent person  to  be  intrusted  with  the  duty  to  which  he  was  assigned, 
and  the  accident  resulted  from  his  incompetency  and  unfitness 
(Laning  v.  N.  Y.  Central  /e.  R.  Co.,  49  N.  Y.  521  )  ;  second,  where 
the  accident  resulted  from  unsafe  and  imperfect  machinery  and  ap- 
pliances, furnished  for  the  use  of  the  servant  in  the  master's  busi- 
ness. (Laning  v.'iV.  V.  Central  R.  R.  Co.,  supra:  Flike  v.  Boston 
&  Albanv  R.  R.  Co.,  53  N.  Y.  550;  Fuller  v.  Jercctt.  80  Id.  46.) 

These  exceptions,  however,  are  subject  to  the  qualifications  that 
the  duty  imposed  upon  the  master  to  employ  competent  servants, 

'  The  facts  are  condensed  from  those  given  in  the  opinion. 


76  APPENDIX. 

and  furnish  fit  and  safe  machinery,  is  not  absolute,  but  relative. 
The  master  does  not  guarantee  eit;her  the  competency  of  the  co- 
servants,  or  the  safety  of  the  machinery  and  appliances.  He  un- 
dertakes to  use  due  and  reasonable  care  in  both  respects,  and  that 
there  shall  be  no  negligence  on  his  part  or  on  the  part  of  any  per- 
son intrusted  by  him  with  the  business  of  employing  servants  and 
providing  safe  machinery,  etc.  It  is  plain  that  the  master's  liability, 
if  sustained  in  this  case,  rests  upon  the  second  exception  stated,  viz. : 
the  negligent  furnishing  of  an  unsafe  machine  for  the  use  of  the 
intestate.  The  competency  of  the  boilermakers  and  machinists' 
employed  in  repairing  the  locomotive  before  it  came  to  the  hands 
of  the  intestate  and  Smith,  is  not  questioned.  The  rules  of  the  shop 
were  comprehensive,  and  required  a  full  examination  by  the  boiler- 
makers  and  machinists  to  discover  defects.  Their  negUgence  is 
not  a  ground  of  action  against  the  master,  unless  as  between  the 
intestate  and  the  master  it  was  the  master's  duty  to  ascertain  before 
the  intestate  and  Smith  were  put  to  setting  the  valve  that  the  boiler 
was  safe  and  would  bear  the  required  pressure.  We  think  this  case 
is  not  within  the  principle  which  holds  the  master  responsible  for 
unsafe  machinery  furnished  for  the  use  of  the  servant.  The  case 
of  Fuller  V.  Jezvctt  (80  N.  Y.  46)  is  a  distinct  authority  for  the 
proposition,  that  if  this  locomotive  had  been  sent  out  from  the  shop 
and  afterward  exploded  while  in  use  on  the  defendant's  road,  in- 
juring the  engineer  or  other  servants  of  the  defendant,  the  com- 
pany would  have  been  responsible.  The  negligence  of  the  boiler- 
makers  in  the  case  supposed  would  be  regarded  as  the  negligence 
of  the  master.  The  risk  of  the  negligence  of  the  repairers  and 
machinists  would  not  be  considered  one  of  the  risks  which  a  servant 
in  whose  hands  the  machine  was  subsequently  placed  for  use  had 
assumed.  The  placing  of  the  locomotive  on  the  road  for  use  would 
be  an  assurance  that  it  was  fit  and  safe;  and  an  engineer  or  other 
servant  employed  on  the  train  could  not  be  supposed  to  have 
known  the  condition  of  the  locomotive,  or  whether  the  men  em- 
ployed to  make  repairs  were  competent,  or  the  manner  in  which  the 
work  had  been  done.  In  this  case  Murphy  was  not,  we  think,  a 
servant  in  whose  hands  the  locomotive  was  placed  by  the  de- 
fendant for  use,  within  the  principle  of  Fuller  v.  Jezvett,  and  like 
cases.  The  locomotive  was  sent  to  the  repair  shop  in  order  that 
it  might  be  made  fit  for  use.  The  mechanics  in  the  repair  shop, 
including  the  intestate,  were  employed  for  the  purpose  of  repairing 
defective  locomotives.^  The  intestate  and  his  co-laborers  in  the  shop 
were  engaged  in  the  same  department  of  service,  worked  under  the 
same  control,  and  in  the  case  in  question,  the  boilermakers  and  the 

*  Where  a  servant  is  employed  to  repair  machinery  or  structures  he  must 
expect  to  find  them  defective,  their  bad  condition  being  the  very  reason  and 
occasion  for  his  labor  on  them.  See  §  268  Labatt.  Master  and  Servant,  and 
notes  thereto,  and  Moloney  v.  Florence,  etc.,  R.  R-.  39  Colo.  384  (1907).  IQ 
L.  R.  A.  N.  S.  348.  And  this  though  their  bad  condition  lie  due  to  the  ante- 
cedent negligence  of  other  employes  of  the  same  master.  Dartmouth  Spinning 
Co  v.  Achord,  86  Ga.  14  (1889).  Nor  can  a  servant  employed  in  construc- 
tion work  expect  the  same  perfection  of  equipment  as  he  is  entitled  to  find 
in  the  finished  plant.    §  237,  ihid,  and  notes. 


MURPIIV  ■t'.   nOSTOX   .V   ALP.AXV   K.  R.  CO.  /J 

Other  mechanics  were  employed  to  effect  the  same  object,  viz. :  the 
reparation  of  the  "Sacramento."  It  is  true  that  the  work  was  done 
in  successive  stages,  and  different  parts  of  the  work  were  intrusted 
to  dift'erent  persons.  The  refitting  of  the  valve  and  its  adjustment 
to  the  required  pressure,  were  the  last  things  to  be  done.  This 
work  was,  however,  as  necessary  in  fitting  the  locomotive  for  use 
as  the  work  of  the  boilermakers  or  machinists.  The  intestate  had 
an  opportunity  to  inform  himself  of  the  competency  of  his  co- 
servants  in  the  shop.  He  doubtless  supposed  that  the  boilermakers 
had  performed  their  duty;  unfortunately  they  had  neglected  it. 
But  we  think  the  risk  of  their  negligence  was  one  of  the  risks  he 
assumed,  as  incident  to  his  employment  in  the  common  service.  It 
would  be  too  close  a  construction,  to  hold  that  the  repairs  were  com- 
pleted when  his  work  commenced,  and  that  the  setting  of  the  valve 
was  an  independent  and  disconnected  service  in  respect  to  a  machine 
put  into  his  hands  by  the  company  for  use.  This  claim  of  the  plain- 
tiff's counsel  would  make  the  master  responsible  to  each  successive 
employe  engaged  on  the  repairs  for  any  negligence  of  a  co- 
employe,  whose  work  was  prior  in  point  of  time,  although  done  in 
effecting  the  common  purpose  in  which  all  were  engaged."*  This 
would,  we  think,  be  extending  the  liability  of  the  master  further 
than  is  warranted  by  the  adjudged  cases. 

The  case  is  not  free  from  difficulty,  but  we  are  of  opinion 
that  the  nonsuit  was  properly  granted,  and  the  judgment  should, 
therefoi-e,  be  affirmed. 


^Accord:  Armour  v.  Hahn,  in  U.  S.  313  j;i884),  a  carpenter  engaged 
in  the  erection  of  a  building,  stepped  upon  the  projecting  end  of  a  joint, 
which  being  insecurely  fastened,  gave  way,  causing  him  to  fall  thirty  feet 
to  the  ground.  The  master's  duty  to  provide  a  safe  place,  etc.,  for  his  serv- 
ants to  work  "does  not,"  said  Gray.  J.,  p.  318,  "impose  on  him  the  duty,  as 
toward  them,  of  keeping  a  building  which  they  are  employed  m  erectmg  ni 
a  safe  condition  at  every  moment  of  their  work,  in  so  far  as  its  safety 
depends  on  the  due  performance  of  that  work  by  them  and  their  fellows. 
If  the  joist  was  at  the  time  insecure,  it  was  either  by  reason  of  the  risks 
incident  to  the  *  *  *  unfinished  condition  of  the  building;  or  else  by 
reason  of  some  negligence  of  one  of  the  carpenters  or  bricklayers,  all  of 
whom  were  employed  and  paid  for  by  the  same  master  and  were  working  in 
the  course  of  their  employment  at  the  same  time  and  place,  with  an  imme- 
diate common  object,  the  erection  of  the  building."  See  also  Citrottc  v.  Coh- 
struciion  Co.,  188  N.  Y.  339  dPO/).  I9  L.  R.  A.  N^  S.  340.  with  valuable 
note;  Russell  v.  R.  R..  188  N.  Y.  344;  Maloney  v.  R  R..  39  Coo.  384  (190/). 
but  compare  HUgcr  v.  IValla  IValla.  50  Wash.  4/0  (1907).  where,  however, 
the  employer  had,  by  a  superintendent,  assumed  the  direction  and  super- 
vision of  the  work,  the  digging  of  a  ditch  for  the  la^Mng  of  water  pipe. 
Compare  also  Halwas  v.  American  Granite  Co.,  123  N.  ^^V^//^^,/^^.'^".  ^^^^c^ 
TOOO)  where  it  was  held  that  a  crane  crew  moving  a  gran  te  block  and 
SngTt  in  position, for  the  plaintiff,  a  stone  cutter,  to  carve  lettering  upon 
ft  werf  not  fellow  servants  of  the  latter's.  but  were  entrusted  with  the  masters 
duty  of  providing  him  a  safe  working  place;  but  see  Marshall,  J.,  concurring. 


APrExnix. 


TITUS  V.  BRADFORD,  ETC.,  RAILROAD  CO. 
Supreme  Court  of  Pennsylvania,  1890.     136  Pa.  618. 

Mitchell^  J. :  We  have  examined  all  the  testimony  carefully, 
and  fail  to  find  any  evidence  of  defendant's  negligence.  The  negli- 
gence declared  upon  is  the  placing  of  a  broad-gauge  car  upon  a 
narrow-gauge  truck,  and  the  use  of  "an  unsafe,  and  not  the  best 
appliance,  to  wit,  the  flat  centre  plate;"  or,  as  expressed  by  the 
learned  judge  in  his  charge,  in  using  on  the  narrow-gauge  road  the 
standard  car  bodies,  and  particularly  the  New  York,  Pennsylvania 
&  Ohio  car  body  described  by  the  witnesses.  But  the  whole  evi- 
dence, of  plaintiff's  witnesses  as  well  as  of  defendant's,  shows 
that  the  shifting  of  broad-gauge  or  standard  car  bodies  on  to 
narrow-gauge  trucks  for  transportation,  is  a  regular  part  of  the 
business  of  narrow-gauge  railroads,  and  the  plaintiff's  evidence 
makes  no  attempt  to  show  that  the  way  in  which  it  was  done  here 
was  either  dangerous  or  unusual.  Haleman  says  the  majority  of 
the  bearings  fit,  and  those  that  do  not,  have  hard-wood  blocks  put 
under  them,  and  the  blocks  are  fastened  with  telegraph  wire,  and 
he  was  not  positive  but  that  some  were  bolted  on.  The  particular 
car  complained  of  was  blocked  and  wared.  Cazely  and  Richmond 
say  it  was  the  custom  to  haul  these  broad-gauge  cars  on  the  narrow- 
gauge  trucks,  though  most  of  the  broad-gauge  were  Erie  cars,  of  a 
somewhat  different  construction;  and  Alorris  says  the  car  in  ques- 
tion was  put  on  a  Hays  truck,  fitted  for  carrying  standard-gauge 
cars  on  a  narrow-gauge  road,  and  that  this  particular  kind  of 
"Xypano"  car  was  so  hauled  quite  often.  These  are  plaintiff's  own 
witnesses,  and  none  of  them  say  the  practice  was  dangerous.  ^The 
nearest  approach  to  such  testimony  is  by  Morris,  who  says  he  "had 
his  doubts." 

But,  even  if  the  practice  had  been  shown  to  be  dangerous,  that 
would  not  show  it  to  be  negligent.  Some  employments  are  essen- 
tially hazardous,  as  said  by  our  Brother  Green,  in  North.  C.  Ry.  Co. 
V.  Husson,  loi  Pa.  i,  of  coupling  railway  cars;  and  it  by  no  rneans 
follows  that  an  employer  is  liable  "because  a  particular  accident 
might  have  been  prevented  by  some  special  device  or  precaution  not 
in  common  use."  All  the  cases  agree  that  the  master  is  not  bound 
to  use  the  newest  and  best  appliances.  He  performs  his  duty  when 
he  furnishes  those  of  ordinary  character  and  reasonable  safety,  and 
the  former  is  the  test  of  the  latter;  for,  in  regard  to  the  style  of 
implement  or  nature  of  the  mode  of  performance  of  any  work,  "rea- 
sonably safe"  means  safe  according  to  the  usages,  habits,  and  ordi- 
nary risks  of  the  business.  Absolute  safety  is  unattainable,  and 
employers  are  not  insurers.  They  are  liable  for  the  consequences, 
not  of  danger  but  of  negligence :  and  the  unbending  test  of  negli- 
gence in  methods,  machiner}',  and  appliances  is  the  ordinary  usage 
of  the  business.  No  man  is  held  bv  law  to  a  higher  degree  of  skil 
than  the  fair  average  of  his  profession  or  trade,  and  the  standard 
of  due  care  is  the  conduct  of  the  average  prudent  man.  The  test  of 
negligence  in  employers  is  the  same,  and  however  strongly  they  may 


TITUS  T'.   r.RADFORD,  F.TC,  R.   R.   CO.  79 

be  convinced  that  there  is  a  better  or  less  dangerous  way,  no  jury 
can  be  permitted  to  say  that  the  usual  and  ordinary  way,  commonly 
adopted  by  those  in  the  same  business,  is  a  negligent  way  for  which 
liability  shall  be  imposed.  Juries  must  necessarily  determine  the 
responsibility  of  individual  conduct,  but  they  cannot  be  allowed  to 
set  up  a  standard  which  shall,  in  effect,  dictate  the  customs  or 
control  the  business  of  the  community. 

In  Ship-building  Works  v.  Nuttall,  119  Pa.  149,  our  Brother 
Williams  said :  "The  testimony  shows  that  such  an  attachment  is 
not  in  general  use.  *  *  *  jj.  jg  j^q^.  enough  that  some  persons 
regard  it  as  a  valuable  safeguard.  The  test  is,  general  use.  Tried 
by  this  test,  the  saw  of  the  defendant  was  such  a  one  as  the  com- 
pany had  a  right  to  use,  because  it  is  such  as  is  commonly  used 
by  mill  owners,  and  it  was  error  to  leave  to  the  jury  any  question 
of  negligence  based  on  the  failure  to  provide  a  spreader."  ^  See 
also  Payne  v.  Reese,  100  Pa.  306;  Sykes  v.  Packer,  99  Pa.  465 ;  Alli- 
son Mfg.  Co.  V.  McCorniick,  118  Pa.  519;  and  Lehigh  Coal  Co.  v. 
Hayes,  128  Pa.  294. 

As  already  seen,  the  testimony  of  plaintiff's  own  witnesses 
showed  the  custom  of  the  appellant  company  to  perform  this  part 
of  its  work  in  the  way  complained  of.  The  defendant's  witnesses 
showed  the  custom  of  at  least  two  other  narrow-gauge  roads  to 
use  the  same  way.  There  was  no  countervailing  evidence  on  part 
of  plaintiff,  though,  as  was  said  in  the  closely  analogous  case  of 
North  C.  Ry.  Co.  v.  Husson,  loi  Pa.  i,  "it  was  certainly  a  part 
of  the  dxity  of  the  plaintiff  to  affirmatively  establish  that  the  loading 
of  cars  in  the  manner  complained  of  was  an  unusual  occurrence." 
In  the  absence  of  such  evidence,  the  defendant's  last  point  should 
have  been  affirmed,  and  a  verdict  directed 'for  the  defendant.'^ 

^  It  appeared  that  the  attachment  in  question  had  been  tried  by  several 
shops,  and  that  in  some  it  had  been  discarded  as  impracticable ;  there  cer- 
tainly appear  to  be  "no  general  agreement  among  mill  owners  or  practical 
sawyers  that  it  was  a  desirable  or  a  useful  attachment." 

^Accord:  Bethlehem  Iron  Co.  V.  Weiss,  100  Fed.  45  (C.  C.  A.  3rd  Circ, 
1900),  and  cases  cited  in  Labatt,  Master  and  Servant .  §  44,  notes  i  and  4. 
Many  cases  hold  that  the  test  is  the  customary  conduct  of  "men  of  ordinary 
prudence  and  caution  engaged  in  like  business."  Prybilski  v.  A^.  W.,  etc.,  Ry. 
Co..  98  Wis.  413  (1898),  and  note  3,  §  44,  Labatt,  Master  and  Servant.  In 
Wabash  R.  R.  v.  McDaniels,  107  U.  S.  454  (1882),  such  usage  is  regarded 
only  as  evidence  of  what  is  proper  and  not  as  being  the  standard  by  which 
to  measure  of  the  sufficiency  of  the  particular  appliance,  etc. ;  for  cases  follow- 
ing this  view.  Sec  Labatt,  §  ^o  and  notes,  but  compare  Washington,  etc.. 
R.  R.  V.  McDadc.  135  U.  S.  554  (1890).  The  weight  of  authority  inclines  to 
the  view  that  this  test  applies  also  to  determine  the  sufficiency  of  the  sys- 
tem of  work  adopted.  Hunt  v.  Hurd,  98  Fed.  683  (C.  C  A.  7th  Circ,  1900)  ; 
Lehigh,  etc.,  Co.  v.  Hayes,  128  Pa.  294  (1889)  ;  Hennessy  v.  Bingham,  125 
Cal.  627  (1899);  Wood  v.  Heijes,  83  Md.  257  (1896);  contra.  Kansas  City, 
etc.,  R.  R.  V.  Burton,  97  Ala.  240  (1892).  As  to  whether  the  sufficiency  of  a 
method  of  inspection  is  to  be  so  determined  see  Labatt.  §  163,  note  i.  Where 
a  particular  protection  is  required  by  statute  a  general  custom  to  disobey 
its  provisions  will,  of  course,  not  justify  the  defendant's  disobedience.  Jones 
V.  American  Caramel  Co..  225  Pa.  644  (1909).  Nor  vf\\\  it  avail  a  master, 
whose  plant,  originally  better  than  the  ordinary,  deteriorates  through  negli- 
gent lack  of  repair,  that  it  is  still  as  good  as  that  usually  provided.  Bender 
V.  R.  R.,  137  Mo.  240  (1897)  ;  Lake  Erie,  etc.,  v.  Mugg,  132  Ind.  168  (1892). 
and  see  Ross  v.  Pearson  Co.,  164  Mass.  257  (1895),  and  Reese  v.  Herchey,  163 
Pa.  253  (1894). 


8o  APPENDIX. 


GITTENS  V.  WILLIAM  PORTER  COMPANY. 
Supreme  Court  of  Minnesota,  1903.     90  Minn.  512. 

Lewis,  J. :  Respondent  company  was  engaged  in  the  construc- 
tion of  the  Great  Northern  car  shops  on  Dale  street,  in  the  City  of 
St.  Paul,  consisting  of  six  separate  buildings  located  in  the  imme- 
diate vicinity  of  each  other.  Appellant  was  engaged  as  a  general 
assistant  in  different  kinds  of  work  about  the  buildings,  and  had 
several  years  of  experience  as  a  bridge  carpenter,  and  was  consid- 
ered an  all-around  competent  workman.  The  apparatus  used  in  ele- 
vating the  lumber  and  material  to  the  roof  was  called  a  "hoist," 
made  of  three  pieces  of  plai.k  in  the  form  of  a  right-angle  triangle. 
On  the  day  prior  to  the  injury,  appellant,  with  another  workman, 
had  been  assisting  in  operating  the  hoist  involved  in  this  contro- 
versy, and  had  thereafter  been  employed  in  a  similar  manner  in 
handling  material  with  another  hoist  upon  one  of  the  other  buildings. 
While  appellant  was  so  engaged,  he  was  called  by  the  foreman  to 
help  -n  elevating  material  with  the  hoist  in  question.  According  to 
the  undisputed  testimony,  appellant  and  a  fellow-workman  left  the 
building  on  which  they  were  at  work,  and  went  upon  the  one  where 
the  hoist  was  situated ;  appellant  taking  his  position  at  the  edge  of 
the  roof,  near  the  cornice,  and,  assuming  that  the  hoist  was  properly 
adjusted,  leaned  over  the  edge  of  the  building  to  guide  the  rope 
which  ran  through  a  pulley  and  was  attached  to  a  bundle  of  flooring 
being  pulled  up  by  means  of  a  horse  on  the  ground  below,  when, 
without  warning,  the  hoist  tipped  over  and  was  pulled  to  the  ground 
by  the  weight  of  the  load,  taking  appellant  with  it.  This  action  for 
damages  is  based  on  the  theory  that  respondent  was  guilty  of  negli- 
gence in  failing  to  provide  a  reasonably  safe  appliance  and  a  rea- 
sonably safe  place  for  the  performance  of  the  work. 

At  the  close  of  the  case  respondent  rested,  with  leave  to  move 
for  a  motion  to  direct  a  verdict  upon  the  following  grounds :  That 
appellant  had  failed  on  all  the  evidence  to  establish  a  prima  facie 
case  against  respondent ;  that  there  was  no  evidence  to  establish 
negligence  approximately  causing  the  injury;  that  it  affirmatively 
appeared  from  the  evidence  that  the  negligence,  if  any,  was  that  of 
appellant's  fellow-servant ;  and  that  as  a  matter  of  law  appellant 
assumed  the  risk  attending  his  work  in  connection  with  the  hoist. 
Motion  granted,  and  verdict  directed  in  favor  of  respondent. 

There  are  two  well-defined  rules  established  by  the  decisions  of 
this  court  in  respect  to  the  duty  of  the  master  in  furnishing  tools, 
machinery,  and  appliances  used  by  employees :  First,  Where  the 
apparatus  or  appliance  is  furnished  by  the  master,  and  is  not  one 
required  to  be  constructed  in  the  ordinary  progress  of  the  work, 
then  the  duty  rests  upon  the  master  to  see  that  such  appliance  is 
reasonably  safe  for  the  use  intended.  In  such  case  it  is  immaterial 
whether  the  master  manufactures  the  appliance  or  whether  it  is 
purchased.^     The  principle  is  the  same,  and  rests  upon  the  natural 

'Or  where,  as  in  Carr  v.  Gen.  Fire  Extinguisher  Co.,  224  Pa.  346  (1909), 
a  foreman  in  charge  uses  an  appliance,  in  this  case  a  ladder,  found  on  the 


GITTENS   V.    WILLIAM    POKTKK    COMPANY.  Si 

right  of  the  workman  to  rely  upon  such  appliance  as  being  what  it  is 
represented  to  be.  The  master  has  a  better  opportunity  to  know  of 
and  test  the  sufficiency  of  the  apparatus,  and  his  experience  as  an 
employer  or  master  better  qualifies  him  than  an  ordinary  employee 
to  pass  upon  its  efficiency.  Second.  Where  the  structure,  apparatus, 
or  appliances  are  a  part  of  or  incidental  to  the  work  being  carried  on, 
and  the  workmen  construct  them  as  a  part  of  their  employment,  the 
master  is  relieved  from  such  special  supervision,  and  each  employee 
assumes  the  risk  attending  the  negligence  of  fellow- workmen  in 
respect  thereto. - 

The  latter  rule  is  illustrated  by  the  cases  of  Frascr  v.  Red  River 
Lumber  Co.,  45  Minn.  235,  47  N.  W.  785 ;  Marsh  v.  Herman,  47 
Minn.  537,  50  N.  W.  611 ;  Oelschlegel  v.  Chicago  G.  IV.  Ry.  Co.,  73 
Minn.  327,  76  N.  W.  56.  It  is  often  the  subject  matter  of  special 
agreements,  and  the  master  may  voluntarily  assume  the  responsi- 
bility of  furnishing  such  appliances  or  structures,  although  ordi- 
narily they  would  be  treated  as  a  part  of  the  work.^  In  such  cases 
the  employees  have  a  right  to  assume  that  the  master  will  perform 
his  duty,  and  an  illustration  of  this  principle  is  found  in  Sims  v. 
American  S.  B.  Co.,  56  Minn.  68,  57  N.  W.  322,  and  Blomqidst  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  60  Minn.  426,  62  N.  W.  818.  There 
are  also  cases  where,  from  the  peculiar  character  of  the  temporary 
structure,  and  where  it  is  put  to  some  unusual  test,  the  person  in- 
jured has  had  no  knowledge  or  opportunity  to  judge  of  its  efficiency ; 
and  then  the  master  will  be  liable  for  its  faulty  construction.  This 
principle  is  illustrated  in  the  case  of  Hagerty  v.  Evans,  87  Minn. 
435,  92  N.  W.  399.^^ 

Was  the  hoist  in  this  case  an  appliance  which  required  the 
master  to  see  that  it  was  properly  constructed,  or  was  it  an  apparatus 
to  be  made,  as  occasion^ required,  by  the  workmen  engaged  in  the 
general  enterprise?  We  have  no  doubt,  that,  if  a  complete  derrick  or 
hoist  had  been  manufactured  by  respondent,  or  purchased  by  it,  and 
sent  to  the  place  of  work,  and  an  injury  had  occurred  by  reason  of 
some  defect  therein,  the  master  would  be  liable  under  the  general 
rule ;  but  from  the  evidence  we  are  forced  to  the  conclusion  that  the 
hoist  was  not  such  an  implement.  No  particular  material  was  fur- 
nished for  its  construction,  and  the  necessary  planks  were  selected 


premises,  and  this,  though  he  expressly  disregards  his  positive  instructions  to 
procure  all  tools,  etc.,  by  requisition  from  his  employer's  nearby  storehouse. 

-Different  courts  differ  as  to  whether  a  particular  sort  of  appliance  is  a 
permanent  instrumentality  which  it  is  the  master's  duty  to  see  is  safe  when 
supplied  or  one  merely  temporary,  which  it  is  the  workmen's  duty  to  con- 
struct as  needed.  Compare  Haskell  v.  Cape  Ann  Anchor  IVorks,  178  Mass. 
485  (1901),  with  Buck  V.  New  Jersey  Zinc  Co.,  206  Pa.  132  (1902).  both  cases 
where  through  the 'negligence  of  the  blacksmith  employed  on  the  premises 
by  the  master,  a  link  in  a  car  chain  was  unsafe. 

^Accord-  Ackerson  v.  Dcnnison,  117  Mass.  407  (1875)  and  cf.  with  it 
Kellev  V  Norcross,  121  Mass.  So8  (1877).  and  compare  Cald:ccll  v.  Hickey. 
221  Pa  545  (1908)  with  IVhif taker  v.  Bent.  167  Mass.  588  (1897).  and  Ross 
v  Walker  1,39  Pa  42  (1891),  and  see  JVoods  v.  Lindvalc.  4  C^-  S.  .App.  49 
(C  C  A  '8th  Circ,  1891),  and  Miller  v.  R.  R.,  109  Mo.  350  (1892),  p.  356. 
see  Raines  v.  Tetlcv-Klem  Co.,  149  Mo.  App.  576  (1910),  where  it  was  held 
that  though  the  plaintiff's  gang  build  the  scaffold  themselves,  a  member  oi 
another  gang  directed  by  the  superintendent  to  repair  it  is  not  the  plaintiff's 
fellow  servant. 


82  APPENDIX. 

from  material  on  the  ground,  used  in  the  erection  of  the  building. 
No  particular  class  of  workmen  was  designated  by  the  master  to 
select  the  timber  and  construct  the  hoist,  in  the  sense  that  such  em- 
ployment became  an  independent  part  of  the  work,  within  the  doc- 
trine of  Sints  V.  American  S.  B.  Co.,  supra.  The  affair  was  of  a 
simple  design,  easily  and  readily  put  together,  and  for  a  temporary 
purpose.  The  fact  that  the  foreman  directed  such  a  hoist  to  be  made 
and  used  at  the  particular  time,  did  not,  under  the  evidence  in  this 
case,  make  the  master  liable  upon  the  principle  that  he  had  volun- 
tarily assumed  the  responsibility  of  its  construction.  Appellant  was  a 
fellow- workman  with  the  carpenters  engaged  in  laying  the  floor.  He 
assisted  in  elevating  and  carrying  the  lumber  to  them,  and  they  put 
it  in  place ;  and,  upon  occasion,  he  too,  was  engaged  in  nailing  down 
flooring.^ 

Further,  if  the  hoist  was  properly  made,  and  the  injury  was 
not  occasioned  by  any  inherent  defect,  but  occurred  because  it  had 
been  improperly  fastened  to  the  roof,  the  master  is  not  liable  for  the 
same  reason  above  stated. 

Ihere  is  no  application  in  this  case  of  the  doctrine  that  the 
master  was  required  to  furnish  a  reasonably  safe  place  for  appellant 
to  work  in.  The  erection,  fastening,  and  operation  of  the  hoist  con- 
stituted a  mere  detail  of  the  general  work,  and  the  contract  of  hiring 
contemplated  that  appellant  assume  the  risks  incident  thereto.  "The 
defendant,  as  master,  was  under  no  implied  contract  with  the  plain- 
tiff that  other  servants  engaged  in  the  same  employment  should  not 
adopt  or  pursue  unsafe  methods."    Corneilson  v.  Eastern  Ry.  Co., 


"■Accord:  Ross  v.  Walker,  139  Pa.  42  (1890);  Christiansen  v.  Cane  Co., 
76  N  J  L  231  (1908).  It  is  not  the  master's  duty  "after  having  provided 
materials  ample  in  quantity  and  quality"  (for  the  building  of  the  scaffolding 
or  false  work  necessary  in  the  construction  of  a  bridge),  "to  supervise  the 
selection  of  every  stick  for  every  purpose."  "The  actual  selection  out  of  this 
stock  of  the  sticks  needed  from  time  to  time,  was  not  his  duty  but  that  of 
the  workmen  themselves,"  per  Williams,  J.,  p.  51 ;  Kennedy  v.  Spring,  160  Mass 
203  (1893)  In  Prescott  v.  Ball  Engine  Co.,  176  Pa.  459  (1896),  it  was  held 
that  the  plaintiff  can  recover  only  if  there  was  no  other  tool  or  material 
available  better  than  that  selected,  and  that  it  was  not  negligence  to  allow 
a  rooe  to  remain  in  stock  when  by  use  it  had  become  so  weakened  as  to  be 
no  longer  capable  of  bearing  heavy  weights,  if  it  was  still  fit  for  some  use  m 
the  owner's  business,  but  if  the  tools  {Far r ell  v  Eastern  Mfg.  Co.,  77  Conn. 
484  I190SI,  but  see  contra  [semble].  Maryland  Clay  Co.  v.  Goodnow,  9..  ^W- 
Iko  ri002  or  material  Twomey  v.  Szvift,  163  Mass.  273.  [1895]),  is  wholly 
unfit  and  dangerous  for  any  use  in  the  defendant's  business,  it  is  negligence 
in  him  to  keep  it  in  stock,  and  he  is  not  released  from  liability  by  the  con- 
current nedigcnce  of  the  servant  who  negligently  chose  it.  mstead  of  other 
safe  tools  or  material  also  available.  So  if  a  sufficient  number  of  competent 
workmen  are  provided,  the  master  is  not  liable  for  the  negligence  of  a  fore- 
man in  assigning  an  inexperienced  or  physically  incapable  workman  to  a 
particular  piece  of  work.  Hilton  v.  Fifchburg  R.  R.,  73  N.  H.  116  (1904).  or 
in  not  providing  a  sufficient  force  to  make  the  work  safe.  Husseyv. 
TT2  NY  614  but  see  contra.  Brown  v.  Rome  Factory  Co..  5  Ga.  App  142 
riQoSi  where  it  is  assumed  that  the  master  is  liable  if  a  foreman  by  calling 
iw?v  one  of  the  workmen  engaged  on  a  job  leaves,  the  force  emn  oyed  dan- 
gerously insufficient,  and  compare  Flike  v  R.  R.,  53  N.  Y.  549  (i«73)- 


NORD  DEUTSCIIEK   I.r.OVl)  S.   S.   CO.   V.   IXGEnRIXSTEN.  83 

50  Minn.  23,  52  N.  W.  224.«   See  also  Ling  v.  St.  Paul,  M.  &  M.  Ry. 
Co.,  50  Minn.  160,  52  N.  W.  378,  and  Dixon  v.  Union  Ironworks, 
supra,  page  492. 
Order  affirmed. 


NORD  DEUTSCHER  LLOYD  STEAMSHIP  COMPANY  v. 
INGEBREGSTEN. 

Court  of  Errors  and  Appeals  of  New  Jersey,  1894.     57  N.  J.  Law,  400. 

Dixon,  J. :  In  an  action  by  an  administratrix  to  recover  dam- 
ages resulting  from  the  death  of  her  intestate,  it  appeared  that  the 
deceased  was  a  stevedore  in  the  employ  of  the  defendant  and  was 
killed  while  unloading  one  of  the  defendant's  steamships  at  the 
(lock  in  Hoboken.  The  circumstances  of  his  death  were  as  follows: 
The  ship's  ©argo,  consisting  of  bags  of  rice,  weighing  about  two 
hundred  and  fifty  pounds  each,  was  hoisted  out  of  the  hold  by  means 
of  a  wire  rope  fifteen-sixteenths  of  an  inch  in  diameter,  called  a 
"hanger,"  suspended  from  one  of  the  ship's  masts  and  having  its 
lower  end  held  over  the  hatch  by  another  wire  rope  called  an  "out- 
haul"  ;  the  lower  end  of  the  hanger  was  formed  into  a  loop  by  being 
bent  around  an  iron  thimble  and  spliced  upon  itself  with  hemp  lash- 
ing for  a  foot  or  two  above  the  thimble ;  the  thimble  was  shaped 
like  a  horse's  collar  inverted,  except  that  the  upper  ends  were  not 
quite  closed ;  into  this  thimble  were  hooked  the  lower  end  of  the 
outhaul,  and  also  the  upper  end  of  the  vertical  hoisting  apparatus, 
at  the  lower  end  of  which  was  a  sling  to  hold  the  bags  of  rice ;  the 
work  of  the  deceased  was  to  place  the  bags  in  the  sling  and  fasten 
the  sling  to  the  apparatus  for  hoisting,  as 'several  slings  were  in  use, 
he  would  frequently  be  ei^gaged  in  filling  one  sling  beneath  the  hatch- 
way while  another  was  ascending;  and  while  he  was  thus  occupied 
the  hanger  broke  at  the  open  end  of  the  thimble  and  the  bags  fell 
upon  him,  inflicting  injuries  from  which  he  soon  died. 

At  the  close  of  the  plaintifif's  case  the  defendant  moved  for  a 
nonsuit,  on  the  ground  that  the  testimony  did  not  indicate  any 
negligence  of  the  defendant  and  did  establish  contributory  negli- 
gence by  the  deceased,  whicli  motion  was  denied  and  an  exception 
sealed. 

The  plaintiff's  evidence  tended  to  prove  that  the  hanger,  if  in 
good  order,  would  sustain  a  weight  of  about  fifteen  tons,  and  had  on 
it  when  it  broke  less  than  one  ton  ;  that  it  had  been  in  use  two  or 
three  times  a  week  for  about  seven  years ;  that  before  the  accident 
it  was  rustv,  and  at  the  point  of  fracture  had  been  abraded  by  the 


'"It  will  not  do  to  say  that,  because  Ryan's  engine  was  in  the  way,  and 
collided  with  the  decedent's  train,  the  track  was  not  clear,  and  therefore  the 
master  had  failed  in  his  duty  of  providing  a  safe  place  for  the  employee  to 
work  in  and  upon.  *  *  *  The  true  idea  is  that  the  place  and  the  irstrn- 
ments  must  in  themselves  be  safe,  for  this  is  what  the  master's  duty  fairly 
compels,  and  not  that  the  master  must  see  that  no  negligent  handling  of  tlic 
machinery  shall  create  danger."  Brewer,  J.,  Hozvard  v.  R.  R.,  26  Fed.  S37 
(1886),  p.  842. 


84  Arpi:xi)i.\. 

ends  of  the  thimble;  that  these  defects  were  discoverable  on  re- 
moving the  lashing  by  which  the  splice  was  made,  and  that  the  appa- 
ratus was  supplied  by  the  defendant  and  kept  in  charge  of  Gerhart 
Schau,  its  storekeeper,  whose  duty  it  was  to  look  after  all  the  gear 
used  at  the  dock  and  see  that  it  was  in  good  order. 

Upon  this  evidence  we  think  it  became  a  fair  question  for  the 
jury  whether  the  accident  had  not  happened  because  of  a  defect  in 
the  hanger  which  reasonable  inspection  would  have  discovered, 
and  reasonable  prudence  have  remedied.  Supposing  the  jury  might 
decide  that  question  in  favor  of  the  plaintiff,  the  question  of  law 
arises  whether  the  defendant  had  performed  its  duty  as  employer,  by 
flelegating  to  its  storekeeper,  Schau,  the  duty  of  inspection  and  re- 
pair. 

The  master's  duty  to  his  servant  requires  of  the  former  the 
exercise  of  reasonable  care  and  skill  in  furnishing  suitable  machinery 
and  appliances  for  carrying  on  the  business  in  which  he  employs 
the  servant,  and  in  keeping  such  machinery  and  appliances  in  repair, 
including  the  duty  of  making  inspections  and  tests  at  proper  inter- 
vals. Union  Pacific  Railroad  Co.  v.  Daniels,  152  U.  S.  684.  So  far 
the  authorities  are  at  one.  Almost  as  unanimous  are  they  in  the 
proposition  that,  if  the  master  selects  an  agent  to  perform  this  duty 
for  him,  and  the  agent  fails  to  exercise  reasonable  care  and  skill  in 
its  performance,  the  master  is  responsible  for  the  fault.  Northern 
Pacific  Railroad  Co.  v.  Herbert,  116  U.  S.  642,  and  cases  there 
cited ;  Baily  v.  Rome,  Watertown  and  Ogdenshurg  Railroad  Co.,  139 
N.  Y.  302 ;  Hankins  v.  New  York,  Lake  Erie  and  Western  Railroad 
Co.,  2)7  ^-  E.  Rep.  466;  Toy  v.  United  States  Cartridge  Co.,  159 
Mass.  313. 

Discrepancies,  however,  have  arisen  in  the  application  of  the 
latter  rule,  because  of  another  rule  firmly  established,  that  the  master 
is  not  responsible  to  his  servant  for  the  negligence  of  a  fellow-ser- 
vant engaged  in  a  common  employment.  In  determining  whether  an 
employee,  through  whose  negligence  defects  in  the  machinery  have 
failed  of  discovery  or  repair,  is  a  representative  of  the  master  in 
the  discharge  of  the  master's  duty  to  the  servant,  or  is  a  fellow 
servant  of  the  latter  engaged  in  a  common  employment,  many  incon- 
gruous decisions  have  been  rendered 

On  this  topic  a  rational  di,stinction  would  seem  to  be  that  when 
the  employee's  duty  to  inspect  or  repair  the  apparatus  is  incidental  to 
his  duty  to  use  the  apparatus  in  the  common  employment,  then  he  is 
not  entrusted  with  the  master's  duty  to  his  fellow-servant,  and  the 
master  is  not  responsible  to  his  fellow-servant  for  his  fault, ^  but 
that  if  the  master  has  cast  a  duty  of  inspection  or  repair  upon  an 


^Accord:  Sage  v.  B.  &  O.  R.  R.,  219  Pa.  129  (1907),  engineer  failing  to 
report  bad  condition  of  his  locomotive ;  see  also,  Ehni  v.  Tube  Co.,  203  Pa. 
186  (1902),  p.  190.  "It  is  the  dut}'  of  the  employee  to  discover  and  report  any 
defect  which  may  arise  by  reason  or  in  course  of  the  use  made  of  the  material. 
He  has  means  of  observing  and  ascertaining  any  such  defect  which  the  em- 
ployer does  not  possess." 

This,  of  course,  only  applies  where  the  defect  is  one  readily  observable 
by  the  workman  while  using  the  appliance.  McNeil  v.  Crucible  Co.,  21$  Pa. 
333  (1906)  ;  Wilson  v.  Union  Casting  Co.,  223  Pa.  167  (1909). 


NORD   DKUTSCIIKR  LLOYD  S.   S.   CO.   ?'.    I  XGLnRKCS'lKX.  85 

employee  who  is  not  engaged  in  using  the  apparatus  in  a  common 
employment  with  his  fellow-servant,  then  that  employee  in  that  duty 
represents  the  master,  and  the  master  is  chargeable  with  his  default. 
This  distinction  is  noticeable  in  McAndrczvs  v.  Burns,  lo  \'room,  117; 
Smith  V.  Oxford  Iron  Co.,  13  Id.  467;  Collycr  v.  Pennsylvania  Rail- 
road Co.,  20  Id.  59;  Ross  V.  IValkcr,  21  Atl.  Rep.  157;  Moynihan  v. 
The  Hills  Co.,  146  ^lass.  586;  Daley  v.  Boston  and  .Albany  Railroad 
Co.,  147  Id.  loi.  and  many  other  cases. 

Applying  this  principle  to  the  case  in  hand,  it  is  manifest  that 
Schau.  the  storekeeper,  who  was  charged  with  the  duty  of  seeing 
that  the  apparatus  was  in  good  condition  before  it  was  delivered  to 
the  stevedores  for  use,  but  was  not  himself  to  be  engaged  in  using 
it,  was  in  that  service  the  representative  of  the  defendant,  and  was 
not  serving  in  a  common  employment  wnth  the  deceased.  ^  As  the 
evidence  tended  to  show  that  he  had  not  carefully  performed  this 
duty,  and  that  the  accident  had  thence  resulted,  the  plaintiff  could  not 
be  nonsuited  for  want  of  proof  of  negligence  chargeable  to  the  de- 
fendant. 

That  the  case  did  not  present  such  indubitable  proof  of  negli- 
gence on  the  part  of  the  deceased  as  to  justify  a  nonsuit,  is,  I  think, 
too  clear  for  discussion. 

The  nonsuit  was  rightly  refused.^ 


^Accord:  Finnerty  v.  Burnham,  205  Pa.  305  (1903)  ;  Slime  v.  Morgan 
Smith  Co.,  219  Pa.  145  (1909).  So  where  appliances  are  withdrawn  for  repair 
the  master  is  liable  for  a  negligent  inspection  whereby  they  are  reissued  for 
use  in  an  unfit  and  dangerous  condition.  P.  &  N.  V.  Canal,  etc.,  Co.  v.  Mason, 
109  Pa.  296  (1885)  ;  Marsh  v.  R.  R.,  205  Pa.  558  (1903)-  Nor  is  the  master 
the  less  bound  to  inspect  appliances  not  owned"  by  him  but  which  he  tem- 
porarily borrows  or  hires  fot  the  use  of  his  employees.  Sharpley  v.  Wright, 
205  Pa.  253  (1903),  though  he  is  not  bound  to  inspect  either  the  premises 
when  the  work  is  to  be  done  if  he  neither  owns  nor  controls  it,  ib.  p.  258; 
Connolly  v.  Firth.  190  Pa.  553  (1899).  or  an  appliance  of  him  on  whose 
premises  the  work  is  to  be  performed  unless  he  adopts  it  and  furnishes  it 
to  his  employees  for  use  in  his  business,  even  though  if  unfit  it  may  endanger 
his  employees'  safety.    Hughes  v.  Leonard,  199  Pa.  123  (1901). 

The  master  is  not  excused  from  inspection  by  the  fact  that  the  appliance 
is  purchased  from  a  reputable  manufacturer— f/;nif;-^y  v.  Burnham,  supra: 
Morton  v.  Ry.  Co.,  81  Mich.  423  (1890)  ;  Roughan  v.  Co..  161  Mass.  24  (  1894) 
—and  the  existence  of  structural  defects,  patent  to  a  careful  inspection,  is 
proof  of  the  breach  of  the  master's  duty,  ib.;  and  this  is  so  though  the  manu- 
facturer warrants  the  appliance  as  safe  and  fit  for  the  use  to  which  they  are 
put,  though  in  such  case  the  master  may  recover  over  against  the  manufacturer 
the  damages  he  is  forced  to  pay  his  employee.  Boston  ll'oz'en  Hose  Co.  v. 
Kendall,  178  Mass.  232  (1901);  Mowbray  v.  Merryzi'cathcr.  L.  R.  1905,  2  Q. 

B.  640.  ,  ■      ,        •  , 

Where,  however,  the  structure  or  appliance  supplied,  repaired  or  inspected 
is  of  such  a  nature  that  its  sufficiency  and  safety  can  only  be  determined  by 
an  expert,  the  masten.  if  neither  he  himself  nor  any  of  his  subordinates  have 
the  requisite  skill,  need  not  make  an  inspection  which  would  teach  hini  noth- 
ing, Deanc  v.  Co..  5  Colo.  App.  521  (1895)  :  "or  is  he  bound  m  search  of  prob- 
able defects  to  tear  to  pieces  or  submit  an  article  or  subject  to  chemical  ana  y- 
sis  material  bought  of  a  reputable  manufacturer.  Richmond.  ctc.R.  R.  \"J^'('- 
ott.  149  U.  S.  266  (1893)  ;  Ballard  v.  Hilchock  Co.,  51  Hun,  188  (N.  \  ..  i8«9)  : 
Indianapolis,  etc..  R.  R.  v.  Birncy.  91  HI.  474  (1879^.  but  may  commit  the 
inspection  to  experts  making  a  business  thereof.  Young  v.  Mason  Stable  to 
193  N  Y    188  (1908)  ;  Sack  v.  Ralston,  220  Pa.  216  (1908),  elevators  inspected 


86  APPENDIX. 

UNION  PACIFIC  RAILWAY  COMPANY  v.  DANIELS. 
Supreme  Court  of  the  United  States,  1894.     ^52  U.  S.  684. 

Fuller,  C.  J. :  The  evidence  tended  to  show  that  Daniels  was 
a  brakeman  in  the  employment  of  the  company,  and  in  the  discharge 
of  his  duties  as  such,  April  3,  1887,  on  a  freight  train  made  up  at 
Green  River,  and  running  thence  westward ;  that  he  was  ordered 
on  top  of  the  train  to  set  the  brakes  at  different  points  going  down 
a  long  hill,  and  was  so  engaged  when  the  train  was  suddenly 
wrecked,  and  he  was  severely  injured;  that  a  wheel  on  one  of  the 
cars  had  an  old  crack  in  it,  some  twelve  inches  long,  which  rendered 
it  unsafe;  that  the  wheel  gave  way  by  reason  of  the  fracture  and 
thus  the  disaster  occurred ;  and  that,  although  the  crack,  being  old, 
was  filled  with  greasy  dirt  and  rust,  it  could  have  been  detected 
without  difficulty  if  the  wheel  had  been  properly  examined  at  Green 
River,  which  was  an  inspecting  station,  at  which  trains  were  made  up. 

Upon  the  inferences  properly  deducible  from  such  evidence, 
the  rule  applied,  which  requires  of  the  master  the  exercise  of  reason- 
able care  in  furnishing  suitable  machinery  and  appliances  for  carry- 
ing on  the  business  for  which  he  employs  the  servant,  and  in  keeping 
such  machinery  and  appliances  in  repair,  including  the  duty  of  mak- 
ing inspections,  tests,  and  examinations  at  the  proper  intervals.  As 
observed  in  Hough  v.  Railroad  Co.,  100  U.  S.  213,  218,  the  duty  of 
a  railroad  company  "in  that  respect  to  its  employees  is  discharged 
when,  but  only  when,  its  agents,  whose  business  it  is  to  supply  such 
.instrumentalities,  exercise  due  care  as  well  in  their  purchase  origi- 
nally, as  in  keeping  and  maintaining  them  in  such  condition  as  to  be 
reasonably  and  adequately  safe  for  use  by  employees";  and  the 
company  "cannot  in  respect  of  such  matters  interpose  between  it  and 
the  servant,  who  has  been  injured,  without  fault  on  his  part,  the 
personal  responsibility  of  an  agent  who,  in  exercising  the  master's 
authority,  has  violated  the  duty  he  owes,  as  well  to  the  servant  as  to 
the  corporation." 

by  inspectors  of  insurance  company;  Service  v.  Shoneman,  196  Pa.  63  (1901)  ; 
Caz'anaugh  v.  Avoca  Coal  Co.,  222  Pa.  150  (1908),  boilers  similarly  inspected. 

But  the  master  is  liable  if  he  fails  to  have  it  so  inspected,  McGuigan  v. 
Beatty,  186  Pa.  329  (1898),  or  if  he  has  it  inspected  by  his  own  employees  and 
the  inspection  be  carelessly  made,  Corn  Products  Co.  v.  King,  168  Fed.  892  (C. 
C.  A.  7th  Circ,  1909),  or  if  his  manager  or  superintendent  knows,  notwith- 
standing a  favorable  report  of  an  expert  inspector,  that  it  is  in  fact  defective, 
Mollis  V.  U.  S.  Glass  Co.,  226  Pa.  332  (1910)  ;  but  see  Devlin  v.  Smith,  89  N.  Y. 
470  (1882),  which  holds  that  a  master  painter  may,  without  procuring  outside 
expert  inspection,  rely  upon  tlie  sufficiency  of  a  high  scaffolding  built  by  repu- 
table and  experienced  scaffold  builders.  Butler  v.  Tozvnscnd,  126  N.  Y.  105 
(1891)  ;  Carlson  v.  Phoenix  Bridge  Co.,  132  N.  Y.  273  (1892)  :  but  this  does 
not  apnly  where  the  structure  (a  railroad  bridge  on  a  leased  line)  is  perma- 
nent and'  the  company  has  in  its  employment  engineers  competent  to  determine 
its  sufficiency  by  a  reasonable  inspection,  Vosburgh  v.  R.  R.,  94  N.  Y.  374 
(1884). 

A  Government  inspection  designed  to  secure  the  quality  of  the  finished 
article,  will  not  relieve  the  master  from  the  duty  to  inspect  the  material  used, 
to  see  that  it  is  free  from  dangerous  defects  which  he  is  perfectly  able  to  ob- 
serve and  appreciate.  O'Connor  v.  Armour  Packing  Co.,  158  Fed.  241  (1908), 
15  L.  R.  A..  N.  S.  812.  with  note :  meat  passed  by  Government  inspector,  so 
diseased  as  to  expose  operatives  to  infection. 


UXIOX    PACIFIC    RY.    CO.   Z'.   DANIELS.  Sj 

There  can  be  no  doubt  that  under  the  circumstances  of  the  case 
at  bar  the  duty  rested  upon  the  company  to  see  to  it,  at  this  inspect- 
ing station,  that  the  wheels  of  the  cars  in  this  freight  train,  which 
was  about  to  be  drawn  out  upon  the  road,  were  in  safe  and  proper 
condition,  and  this  duty  could  not  be  delegated  so  as  to  exonerate 
the  company  from  liability  to  its  servants  for  injuries  resulting  from 
the  omission  to  perform  that  duty  or  through  its  negligent  perform- 
ance.^ 

The  rulings  of  the  court  in  giving  the  eighth  and  ninth  instruc- 
tions for  plaintiff,  and  in  refusing  to  give  the  sixth  and  seventh  in- 
structions requested  on  the  part  of  defendant,  were  not,  therefore, 
open  to  the  exceptions  taken.-     The  sufficiency  of  the  number  of 

'Accord:  Ford  v.  Fitchburg  R.  R.,  no  Mass.  240  (1872);  McDonald  v. 
Standard  Oil  Co.,  69  N.  J.  L.  445  (1903),  semble ;  Bailey  v.  R.  R..  139  N.  Y. 
302  (  1893),  and  cases  cited  in  Labatt  on  Master  and  Servant,  Vol.  II,  §  568  and 
notes. 

Contra,  P.  &■  R.  R.  R.  v.  Hughes,  119  Pa.  301  (1888),  semble,  in 
vvhich  it  was  said,  p.  314,  that  "a  brakeman  and  car  inspector"  (whose 
duty  it  was  to  inspect  the  cars  while  in  use  and  en  route)  "are  in  the 
same  circle  of  employment,"  and  that  while  "it  is  the  duty  of  the  com- 
pany to  provide  suitable  persons,  in  sufficient  numbers,  at  proper  places, 
with  reasonable  opportunities"  ("and  facilities")  "to  accomplish  the  work." 
Accord:  Crazvford  v.  United  Ry.  Co.,  loi  Md.  402  (1905).  p.  417,  the 
performance  of  the  duty  of  inspection  "must  necessarily  be  committed  in 
detail  to  the  employees"  for  whose  negligent  performance  of  the  work  en- 
trusted to  them  the  company  is  not  liable  to  a  fellow  employe  unless  U 
•'knows  or  by  ordinary  diligence  ought  to  know,  of  the  defective  manner  in 
which  the  inspection  was  conducted,"  and  see,  accord,  Martin  v.  R.  R.,  220 
Pa.  603  (1901),  p.  609.  and  Dorner  v.  Canal  Co.,  164  Pa.  17  (1894),  requiring 
similar  s5'Stem  of  inspection  of  cars  received  for  carriage  from  connecting 
lines.  See  Mackin  v.  R.  R.,  135  Mass.  201  (1883T.  And  this  though  they  are 
being  used  in  the  private  yaiid  of  a  shipper.  Elkins  v.  R.  i?..  171  Pa.  121 
(i89'5).  but  a  consignee  is  not  bound  to  inspect  cars  before  sending  his  serv- 
ants "to  unload  them.  McMullcn  v.  Carnegie,  158  Pa.  518  (1893'),  but  see 
F.  Sr  R.  R.  R.  V  Huber.  128  Pa.  63  (1889)  ;  Mensch  v.  R.  R.,  150  Pa.  598 
(1892),  p.  6x0,  and  McConnell  v.  R.  R.,  223  Pa.  442  (1909). 

While  many  Pennsylvania  cases  assert  that  it  is  the  duty  of  employers, 
other  than  railroad  companies,  to  be  as  alert  in  inspecting  his  machinery  and 
repairing  defects  as  he  is  in  making  a  proper  selection  of  new  machinery,  and 
that  this  duty  is  a  direct  and  continuing  one,  from  which  nothing  but  per- 
formance will  relieve  him.  Weller  v.  Co.,  28  Pa.  S.  C.  102  (1905^  P-  103  and 
cases  cited — in  every  case  there  was  a  total  failure  to  provide  for  the  inspection 
(^f  the  machinery  in  questim  ;  the  liability  of  a  master,  who  has  provided  a 
suitable  system  of  inspection,  for  the  operative  negligence  of  a  competent 
subordinate  etnploved  to  carry  it  out,  appears  never  to  have  been  determined. 

Since  the  duty  arises  not  out  of  ownership  of  the  car  or  other  tool 
or  appliance,  but  out  of  its  use  as  an  instrumentality  of  the  business,  a  rail- 
road company  or  other  master  is  liable  for  an  improper  inspection  of  a  car 
received  for  carriage  from  a  connecting  line,  B.  &  O.  R.  R.  v.  Mackey,  157 
U  S  (1894)  or  of  a  tool  or  anpliance  temporarily  loaned  to  it  for  the  use 
of  its  servants.  Sharpley  v.  Wright,  205  Pa.  253  (1903)  :  Woodivard  Iron  Co. 
v.  Cook,  124  Ala.  351  <'i?99)- 

^The  plaintiff's  eighth  and  ninth  instruction  were  to  the  effect  a  negli- 
gent failure  by  the  car  inspector  to  discover  the  crack  in  the  wheel  was 
ncelicence' for  which  the  defendant  was  liable,  and  that  it  is  no  defense 
tliat  the  company  used  proper  care  and  diligence  in  selecting  such  inspector. 
Tlie  sixth  and  se'venth  instructions  asked  by  defendant  were  to  the  effect  that 
the  company  was  not  liable  unless  there  was  negligence  in  selecting  or  re- 
taining an  incompetent  inspector. 


88  APPENDIX. 

inspectors  and  their  competency  furnished  no  defense,  nor  the  con- 
trary, the  ground  of  recovery,  though  some  of  the  averments  of  the 
complaint  may  have  indicated  that  cause  of  action. 

The  trial  court  charged  the  jury,  among  other  things,  that  the 
defendant  was  required  to  "use  a  reasonable  care,  consistent  with 
the  nature  and  extent  of  the  business,  and  provide  proper  machinery ; 
but  it  is  not  responsible  for  hidden  defects,  which  could  not  have 
been  discovered  by  a  careful  inspection" ;  that  "the  burden  of  proof 
is  in  this  case,  as  in  all  other  cases  like  it,  upon  the  plaintiff,  to  make 
out  his  case  to  your  satisfaction.  The  law  is  well  settled,  both  here 
and  in  England,  our  mother  country,  that  the  employer  should  adopt 
such  suitable  implements  and  means  to  carry  on  the  business  as 
are  proper  for  that  purpose;  and  where  there  are  injuries  to 
its  servants,  or  its  workmen,  and  they  happen  by  reason  of  improper 
or  defective  machinery  or  appliances  in  the  prosecution  or  carrying 
on  the  work  which  they  are  employed  to  render,  the  employer  is 
liable,  provided  he  knew,  or  might  have  known,  by  the  exercise  of 
reasonable  skill,  that  the  apparatus  was  unsafe  and  defective.  If, 
by  reasonable  and  ordinary  care  and  prudence,  the  master  may  know 
of  the  defect  in  the  machinery  which  he  operates,  it  is  his  duty  to 
keep  advised  of  its  condition,  and  not  needlessly  expose  his  servants 
to  peril  or  danger" ;  that  "in  employing  the  plaintiff,  the  corporation 
defendant  did  not  become  an  insurer  of  his  life  or  his  safety.  The 
servant  takes  the  ordinary  risks  of  his  employment.  The  duty  of 
the  defendant  towards  him  was  the  exercise  of  reasonable  care  in 
furnishing  and  keeping  its  machinery  and  appliances,  about  which 
he  is  required  to  perform  his  work,  in  a  reasonably  safe  condition. 
It  was  the  defendant's  duty  also  to  use  like  ordinary  care  in  selecting 
competent  fellow-servants,  and  in  a  sufficient  number,  to  insure  that 
the  work  would  be  safely  done;  and  this  duty  was  discharged  by  the 
defendant  if  the  care  disclosed  by  it  in  these  several  matters  accorded 
with  that  reasonable  skill  and  prudence  and  care  which  careful, 
prudent  men,  engaged  in  the  same  kind  of  business,  ordinarily  exer- 
cise." 

And  that,  "as  between  employer  and  employee,  between  master 
and  servant,  as  in  this  case,  negligence  on  the  part  of  the  former  is 
not  proven,  or  to  be  inferred,  simply  from  the  existence  or  occur- 
rence of  the  accident  which  caused  the  injury  complained  of." 

The  defendant  had  no  reason  to  complain  because  the  fourth 
and  fifth  instructions,  which  it  asked,  were  not  otherwise  given  than 
as  contained  in  the  views  thus  expressed  by  the  court. 

Judgment  affirmed. 


(d)   Miscellaneous  Duties. 

Finch,  J.,  in  Scarff  v.  iletcalf  ct  al.,  107  N.  Y.  211  (1887)  p. 
215: 

The  maritime  law  is  sensitive  to  the  rights  of  seamen  and  sedu- 
lous for  their  protection.  When  sick  or  injured  they  are  entitled  to 
be  cared  for  and  cured  at  the  expense  of  the  ship,  and  not  to  be 
turned  adrift  in  strange  lands  without  adequate  provision.    They  are 


HYATT  t'.   IIANNICAL  &  ST.   jOSIiPll   UV.   CO.  89 

exposed  to  hardship.  confrotT'ed  with  dangers,  and  grow  occasionally 
reckless  by  their  very  familiarity  with  peril.  The  master's  authority 
is  quite  despotic  and  sometimes  roughly  exercised,  and  the  conve- 
niences of  a  ship  out  upon  the  ocean  are  necessarily  narrow  and 
limited.  That  which  on  land  would  be  contributory  negligence  the 
maritime  law  scarcely  recognizes  and  readily  excuses,  ( The  City  of 
Alexandria,  ij  Fed.  Rep.  390,  395),  and  in  many  ways  throws  its 
protection  around  the  seapian.  When  he  falls  sick  or  suffers  injury 
the  owners  owe  to  him  the  duty  of  rendering  such  care  and  medical 
aid  as  circumstances  permit,  and  in  the  performance  of  that  duty  the 
master  stands  as  the  agent  and  representative  of  the  owners  and  his 
negHgence  is  theirs.  {Petersen  v.  Szvan.  50  N.  Y.  Supr.  Ct.  46;  The 
City  of  Alexandria,  supra;  Reed  v.  Canfield,  i  Sumner,  195  ;  Har- 
den V.  Gordon,  2  Mason,  541,  543.)^  The  last  cited  case  considers  the 
effect  of  the  act  of  Congress  requiring  the  ship  to  be  supplied  with  a 
suitable  medicine  chest,  and  holds  that  such  requirement  does  not 
subvert  the  general  duty  imposed  upon  the  owners  by  the  maritime 
law,  but  merely  regulates  a  single  detail  of  its  exercise.  This  duty 
the  owners  who  remain  at  home  and  do  not  sail  upon  the  ship  can 
only  perform,  beyond  supplying  the  medicine  chest,  through  the 
master,  who  becomes  their  agent  for  its  performance.  The  mate, 
although  an  officer,  is  a  seaman.  (Holt  v.  Cunimings,  102  Pa.  212; 
Ocean  Spray,  4  Sawyer,  105;  Minna,  11  Fed.  759.)  While  both  he 
and  the  master  are  servants  of  the  owner  and  so  fellow-servants, 
they  are  not  such  in  respect  to  the  owners'  duty  to  the  seamen  which 
the  master  performs  in  their  behalf  and  as  their  representative,  and 
the  contention  in  this  case  that  the  master's  neglect  was  that  of  a 
fellow-servant  cannot  prevail. 

Where  the  duty  of  the  rwner  to  the  seaman  is  performed,  the 
cost  of  nursing  and  medical  attention  falls  upon  the  ship.-  ( \hv'th 
America,  5  Ben.,  486).  and  that  has  been  ruled  even  where  the  pa- 
tient had  been  removed  to  his  own  house.  (Holt  v.  Cunimings,  su- 
pra.) But  where  the  duty  is  not  performed,  and  the  seaman  suffers 
injury  from  the  neglect,  the  ship,  in  a  proceeding  in  rem.,  and  the 
owners  in  a  suit  against  them,  are  liable  for  the  damages  suffered. 
( Couch  V.  Steel,  yy  Eng.  Com.  Law.  Rep.  402 ;  Brown  v.  Oirrton, 
1  Sprague,  463 ;  Mosely  v.  Scott,  14  Am.  Law  Reg.  599 :  Tomlinson 
V.  Hezvett,  2  Sawyer.  278;  Petersen  v.  Szvan,  supra.)  These  princi- 
ples settle  the  liability  of  ATetcalf,  unless  he  is  discharged  by  force 
of  his  arrangement  with  the  master,  to  which  attention  must  now 
DC  directed. 


Ellison,  J.,  in  Hvatt  v.  The  Hannibal  &  St.  Joseph  Ry.  Co., 
Court  of  Appeals 'of  Missouri.   19  ^^o.  App.  287   (1885).  p.  297: 

'  If  the  necessary  medical  attention  cannot  be  procured  on  board,  the  ship 
must  put  into  a  port  if  there  is  one  within  reasonable  distance.  The  Iroquoi.<:, 
194  U.  S.  240  (1903)  ;  The  Fiillerton.  167  Fed.  i   (1908). 

*  No  similar  liability  to  pay  for  medical  attendance  upon  an  ill  or  injured 
servant  is  recognized  by  the  Common  Law.  See  cases  cited  Ohio  &  Miss. 
R.  R.  V.  Early,  note  2,  post,  p.  440. 


go  APPExnix. 

This  is  not  an  ordinary  hiring,  Hl<e  as  if  one  should  hire  another 
to  go  into  the  timber  to  get  out  wood  or  logs,  as  was  said  in  the  argu- 
ment. In  such  case  no  one  would  contend  there  was  any  obligation 
on  the  hirer  to  provide  fire.  But  here  is  an  extraordinary  emer- 
gency. A  storm  has  blockaded  defendant's  track,  so  as  to  stop  the 
running  of  trains,  so  as  to  catch  their  passenger  trains,  loaded  with 
passengers,  in  the  drift.  Men  are  needed  to  work,  day  and  night, 
without  regard  to  the  intense  severity  of  the  weather;  needed  to 
work  at  a  place  where  there  was  no  habitation,  and  where  there  was 
nothing  with  which  fire  could  be  made.  The  plaintifif,  having  been 
at  work  during  the  day,  and,  noticing  it  was  again  storming  and  the 
weather  growing  yet  colder,  and,  realizing  that  to  go  en  to  a  point 
that  night,  where  there  was  no  means  to  provide  a  fire,  he  might 
possibly  perish  with  cold,  refuses  to  go,  makes  known  his  fears  to 
the  general  superintendent  of  defendant's  railway,  and  receives  from 
him  assurance  that  this  peril  will  be  provided  against.  Relying  on 
such  assurance,  he  is  led  into  the  situation  he  would  have  avoided, 
but  for  the  assurance,  the  promise  not  being  kept,  and  the  plaintiff 
frozen  in  consequence. 

It  is  not  the  duty  of  a  master  to  a  servant  to  provide  him 
with  shelter,  ordinarily,  but  railroads  have  been  built,  and  are  per- 
haps now  being  constructed,  across  sterile,  uninhabited  and  unin- 
habitable countries,  or  sections  of  country.  If  a  servant,  realizing 
that  he  is  being  sent  to  perform  labor  at  such  a  place,  refuses  to  go 
on  account  of  the  peril  to  his  health  or  life,  receives  assurance  that 
shelter  will  be  provided  when  needed,  and  under  such  assurance 
goes,  or  permits  himself  to  be  taken,  to  a  point,  perhaps  hundreds  of 
miles  from  a  habitation,  and  there,  in  consequence  of  the  noncompli- 
ance of  his  master,  he  perishes,  or  is  bodily  injured,  is  not  the  mas- 
ter liable,  and  liable  to  an  action  of  tort?^  Illustrations  might  be 
multiplied,  but  they  will  readily  suggest  themselves  without  being 
set  out  here.  In  my  judgment,  there  was  no  necessity  for  plaintifif's 
alleging  the  promise  in  the  form  of  a  contract  or  agreement  to  pro- 
vide fire.  I  think  it  was  enough  that  plaintifif,  after  working  all  day 
for  the  price  of  a  dollar  and  a  half,  as  agreed,  found  he  was  expected 
to  proceed  that  night,  some  nine  miles  up  the  track  from  Cameron, 
to  a  point  where  no  shelter,  fire  or  fuel  could  be  had ;  that  a  storm 
then  beginning,  the  weather  growing  more  intensely  cold,  and  giving 
evidence  of  an  approaching  unprecedented  cold  night,  had  a  right; 
before  proceeding  further,  to  ask  and  accept  assurances  from  his 
employer  that  he  would  be  provided  with  protection. 

There  is  no  doubt  but  that  plaintifif  could  have  legally  quit  de- 
fendant's service  on  the  evening  he  received  the  assurances  as  to 
the  fire. 

Says  the  court  in  Hough  v.  Ry.  Co.  rioo  U.  S.  225),  quoting 
from  Judge  Cooley:  "If  the  servant,  having  the  right  to  abandon 
the  service  because  it  is  dangerous,  refrains  from  doing  so  in  conse- 


^  Accord:  Clifford  v.  R.  R.,  g  Colo.  333  (1886),  facts  substantially  as 
stated  above,  save  that  bv  the  contract  of  employment  the  master  was  bound 
to  furnish  "good  and  suitable  board  and  lodging",  held  sufficient  to  show  a 
cause  of  action  based  on  the  defendant's  negligence. 


U.    S.   V.    KNOWLES.  91 

quence  of  assurances  that  the  danger  shall  be  removed,  the  duty  to 
remove  the  danger  is  manifest  and  imperative,  and  the  master  is  not 
in  the  exercise  of  ordinary  care  unless  or  until  he  makes  his  assur- 
ances good.  Moreover,  the  assurances  remove  all  ground  for  the 
argument  that  the  servant,  by  continuing  the  employment,  engages 
to  assume  the  risks." 

It  was  the  plaintiff's  duty  to  defendant  to  comply  with  these 
assurances,  as  much  as  it  would  have  been  to  have  protected  him 
from  an  embankment,  or  from  dangerously  defective  machinery ; 
and  it  is  as  much  liable  in  tort  in  the  one  case  as  the  other.- 


FiELD,  J.,  charging  the  jury  in  U.  S.  v.  Knozvlcs,  U.  S.  District 
Court,  Northern  District  of  Cahfornia,  4  Sawyer,  517  (1864),  p. 
520: 

Now.  in  the  case  of  a  person  falling  overboard  from  a  sh.p 
at  sea,  whether  passenger  or  seaman,  when  he  is  not  killed  by  the 
fall,  there  is  no  question  as  to  the  duty  of  the  commander.  He 
is  bound,  both  by  law  and  by  contract,  to  do  everything  consistent 
with  the  safety  of  the  ship  and  of  the  passengers  and  crew,  neces- 
sary to  rescue  the  person  overboard,  and  for  that  purpose  to  stop 
the  vessel,  lower  the  boats,  and  throw  to  him  such  buoys  or  other 
articles  which  can  be  readily  obtained,  that  may  serve  to  support 
him  in  the  water  until  he  is  reached  by  the  boats  and  saved.  No 
matter  what  delay  in  the  voyage  may  be  occasioned,  or  what  ex- 
pense to  the  owners  may  be  incurred,  nothing  will  excuse  the  com- 
mander for  any  omission  to  take  these  ^steps  to  save  the  person 
overboard,  provided  they  can  be  taken  with  a  due  regard  to  the 
safety  of  the  ship  and  o'ffiers  remaining  on  board.  Subject  to  this 
condition,  every  person  at  sea,  whether  passenger  or  seaman,  has 
a  right  to  all  reasonable  efforts  of  the  commander  of  the  vessel 
for  his  rescue,  in  case  he  should  by  accident  fall  or  be  thrown 
overboard.  Any  neglect  to  make  such  efforts  would  be  criminal, 
and  if  allowed  by  the  loss  of  the  person  overboard,  when  by  them 
he  might  have  been  saved,  the  commander  would  be  guilty  of  man- 
slaughter, and  might  be  indicted  and  punished  for  that  offense.' 

^  So  in  Shoemaker  v.  R.  R..  46  Minn.  39  (iSgiV  it  was  held  a  complaint 
averring  that  the  defendant  having  sent  the  plaintiff,  during  extremely  cold 
weather,  to  do  repair  work  at  an  isolated  point,  had  failed  to  give  hun  means 
of  transportation  home,  so  forcing  him  to  walk  nine  mdes  to  the  nearest 
town,  and  that  the  resulting  exposure  had  seriously  impaired  Ins  health,  set 
forth  a  s-ood  cause  of  action;  compare  King  v.  R.  R..  23  R.  I.  S'''.^  (1902). 
and  see  56  Am.  L.  Reg.  238,  n.  32.  ,  -r  ,      r  -i  -a 

So  a  master  appears  to  be  guiltv  of  manslaughter  if  he  fail  to  provide 
necessaries  of  life  to  servant  who  from  youth,  mental  incapacity,  or  physical 
or  mental  coercion  by  the  master  are  unable  or  prevented  from  leaving  his 
premises  and  seeking  them  elsewhere.  R.  v.  Ridley,  2  Camp.  650  uSii). 
seinhlc  and  one  impri.soning  another  must  feed  him.  R.  v.  Edivards,  {<  L.  «: 
P.  611   (1838). 

*So  in  Raasch  v.  Elite  Lauiidrv  Co..  98  Minn.  3S7  (1906).  it  was  held  that 
where  a  servant  is  caught,  whether  by  accident  or  his  own  fault,  in  danger- 
Qus  moving  machinery,   it  is  the  master's  duty  to  take  reasonable  steps  to 


92 


APPENDIX. 


McCabe,  ].,  in  Ohio  &  Mississippi  Raihvay  Company  v.  Early, 
Adm.,  141  Ind.  "jt,  (1894),  p.  81 : 

While  a  railroad  company  is  under  no  general  legal  obligation 
to  furnish  an  employe  who  may  receive  injuries,  while  engaged  in 
the  service  of  the  company,  with  medical  or  surgical  assistance/ 
yet  where  a  day  laborer  or  employe  has,  by  unforeseen  accident  to 
him,  while  engaged  in  the  line  of  his  duty  as  such  employe,  been 
rendered  helpless,  the  dictates  of  humanity,  duty  and  fair  dealing 
would  seem  to  demand  that  it  should  furnish  medical  assistance. 

Of  course,  this  duty  could  not  rest  upon  the  master  in  ordinary 
cases,  in  the  absence  of  a  contract  to  do  so,  but  should  rest  upon 
him  only  in  extraordinary  cases,  where  immediate  medical  or  surg- 
ical assistance  is  imperatively  required  to  save  life  or  avoid  further 
serious  bodily  injury.  This  duty  on  the  railroad  company  only 
arises  out  of  strict  necessity  and  urgent  exigency,  where  immediate 
attention  thereto  is  demanded  in  order  to  save  life  or  prevent  great 
injurv.  The  duty  arises  with  the  emergency  and  with  it  expires. - 
Terr'c  Haute,  etc.,  R.  R.  Co.  v.  McMurray,  98  Ind.  358,  and  author- 
ities there  cited. 

This  dutv  does  not  clothe  the  master  with  the  power  to  dictate 
to  the  injured  servant  what  particular  physician  or  surgeon  shall 
treat  him,  nor  does  it  deprive  such  injured  servant  of  the  right  of 
making  a  conscious  and  deliberate  choice  while  in  the  possession 
of  his  mental   faculties,  of  the  time,  place,  and  person  by  whom, 


extricate  the  servant  in  order  that  his  injuries  may  not  be  unnecessarily 
increased.  Contra,  Allen  v.  Hickson,  in  Ga.  460  (1900),  and  see  Grissle  v. 
Frost,  t>ost,  p.  441. 

In  the  same  case  it  is  also  said  that  a  master  employing  servants  in  the 
operation  of  dangerous  machinery  is  bound  to  take  reasonable  precautions, 
as  by  putting  the  machinery  in  charge  of  one  having  adequate  knowledge  how 
to  operate  and  stop  it  and  by  properly  instructmg  the  operatives  how  to 
shut  oiif  the  power  and  providing  them  with  tools  for  the  purpose,  to  provide 
for  extricating,  without  undue  delay,  a  servant  caught  in  the  machinery. 
Contra.  Stager  v.  Laundry  Co.,  38  Oregon,  480  (1901),  and  compare  In  re 
Pacific' Mail  S.  S.  Co.  130  Fed.  76  (C.  C.  A.  9th  Circ,  1904),  steamship  com- 
pany liable  by  maritime  law  for  failing  to  employ  a  crew  capable  of  efficiently 
operating  the  lifeboats  after  a  collision. 

\4ccord:  WennaU  v.  Adncy,  3  B.  &  P.  247  (Eng..  1802),  semble.  As  to 
the  master's  liability  for  failure  to  provide  proper  food  and  lodging  to  a 
servant,  sui  juris,  mentally  competent,  and  neither  confined  or  otherwise  pre- 
vented by  the  master  from  seeking  these  necessaries  of  life  elsewhere,  see 
R.  V.  Smith.  10  Cox.  C.  C.  82  (1S65)  ;  R.  v.  Ridley,  2  Camp.  650  (1811),  and 
56  Am.  L.  Reg.,  pp.  237  to  241. 

-  So  the  master  is  at  most  only  bound  to  care  for  the  servant  till  he  can 
bring  him  to  some  place  where  the  latter  can  procure  medical  assistance.  The 
master  is  not  bound  to  provide  and  pay  for  medical  assistance.  If  the  servant 
is  indigent  "it  is  more  advantageous  to  the  servant  that  the  legal  claim  for 
assistance  shall  be  upon  the  parish  officers"  (or  other  public  officers  charged 
with  the  care  of  the  indicent  sick)  "rather  than  against  the  master."  Heath. 
J.,  JVennall  v.  Adney,  3  B.  &  P.,  p.  253 ;  and  it  would  be  imposing  an  overly 
onerous  burden  upon  persons  obliged,  by  the  needs  of  their  trade,  to  employ 
servants  to  require  them  not  only  to  lose  their  services  while  ill.  but  also 
to  bear  the  expense  of  curing  them,  ih..  p.  2:;4.  So  it  has  been  held  that  z 
general  manaeer  of  a  manufacturing  corporation  has  no  authority  to  bind  it 
Ijy  emploving.  in  its  name,  a  surgeon  to  treat  an  injured  operative.  Szvasey  V. 
Union  Co.,  42  Conn.  556  (1875)  ;  and  see  56  Am.  L.  Reg.  242  and  notes. 


GKIZZL"  t'.   FROST.  93 

when  and  where  he  will  be  treated.  And  if  the  master,  yielding  to 
such  right,  complies  with  the  request  to  be  so  treated,  and  at  the 
same  time  promptly  places  before  him  ample  medical  and  surgical 
assistance,  ready  to  be  rendered  to  meet  the  emergency  which  he 
declines,  then  such  emergency  has  ceased,  and  the  duty  with  it. 
And  if  the  choice  thus  made  in  the  conscious  exercise  of  his  own 
free  will  turns  out  to  be  a  mistake,  the  company  is  not  liable,  be- 
cause the  duty  ceased  with  the  expiration  of  the  emergency.^ 


(e)   Duty  to  Warn  Minor  or  Inexperienced  Servant. 


GRIZZLE  V.  FROST. 
Queen's  Bench,  1863.     3  Foster  &■  Finlanson,  622. 

The  plaintiff,  a  young  girl  of  under  sixteen,  who  had  never 
been  in  such  employment  before,  was  set  by  the  defendants,  rope 
manufacturers,  to  watch  the  cans  beneath  the  carding  machines, 
and  as  soon  as  they  were  filled  with  the  carded  hemp  to  remove 
them  and  replace  them  with  empty  cans.  There  was  no  danger  in 
doing  this,  but  she  swore  that  a  few  days  before  the  accident  the 
foreman  told  her  to  pick  up  the  hemp  which  fell  from  the  machine 
and  to  put  it  between  the  rollers  while  they  were  in  motion  in  a 
way  which  the  foreman  showed  her  and  which  brought  her  fingers 
very  close  to  the  rollers.  On  the  contrary,  the  foreman  swore 
that  he  had  expressly  told  her  not  to  do  this.  While  doing,  she 
said,  exactly  as  she  had  been  thus  directed,  her  hand  was  caught 
between  the  revolving  rollers.  She  screamed,  but  owing  to  the 
noise  of  the  other  machines  her  screams 'were  not  heard  at  once. 
When  sh^  was  heard  anil  the  foreman  came  to  her  aid,  it  took 
some  time  to  stop  the  machine.  This  delay  it  appeared  was  due  to 
the  absence  of  a  striking  gear  by  which  the  band,  by  means  of  which 
power  was  communicated,  could  be  thrown  off  the  pulley.  In  this 
interval  her  arm  was  drawn  between  the  rollers  and  so  crushed 
that  it  was  found  necessary  to  amputate  it. 

CoCKBURN,  C.  J.:  The  absence  of  proper  means  for  stopping 
the  machine  could  not  alone  sustain  the  action,  unless  there  was 
negligence  on  the  part  of  the  defendants  or  for  which  they  are 
liable,  by  which  the  accident  was  originally  caused;  for  the  delay 
in  stopping  the  machine  of  course  could  only  have  aggravated  the 
injury  and  could  not  have  caused  it.  The  question  therefore  is. 
whether  the  accident  was  caused  by  the  negligence  of  the  defendants, 
or  for  which  they  are  liable? 

The  foreman  was  put  by  them  in  their  place  to  employ  this 
voung  person  in  and  about  the  dangerous  machinery  of  which  she 
was  quite  ignorant,  and  I  think  any  negligence  of  his  iti  the  matter 
would  be  nes:lis:ence  for  which  they  would  be  responsible. 


'Accord:    SIwzv  v.  R.  R.,  103  Minn.  8   (iQO/)  :  but  see  contra.  King  v. 
J?.  R.,  23  R.  I.  583  (1902). 


g4  APPENDIX. 

There  is  evidence  both  of  negative  and  positive  neghgence  on 
his  part — negative,  in  not  giving  the  girl  proper  instructions  as 
to  the  use  of  the  machine — positive  in  expressly  directing  her  to 
do  the  very  thing  she  had  done,  and  which  it  was  admitted  was 
dangerous — so  dangerous,  indeed,  that  the  case  for  the  defense  was, 
that  she  had  been  told  not  to  do  it.^ 

Now  if  either  of  those  grounds  of  negligence  are  sustained 
the  defendants  would  be  liable;  for  I  am  of  opinion  that  if  the 
owners  of  dangerous  machinery,  by  their  foreman,  employ  a  young 
person  about  it  quite  inexperienced  in  its  use,  either  without  proper 
directions  as  to  its  use  or  with  directions  which  are  improper  and 
which  are  likely  to  lead  to  danger,  of  which  the  young  person  is 
not  aware,  and  of  which  they  are  aware ;  as  it  is  their  duty  to 
take  reasonable  care  to  avert  such  danger,  they  are  responsible  for 
any  injury  which  may  ensue  from  the  use  of  such  machinery.^ 

Verdict  for  the  plaintiff,  £150. 


WAGNER  V.  JAYNE  CHEMICAL  COMPANY. 
Supreme  Court  of  Pennsylvania,  1892.     147  Pa.  475. 

Heydrick,  J. :  The  several  assignments  of  error  in  this  case, 
except  the  fourth,  raise  the  question  whether  there  was  any  evidence 
which  ought  to  have  been  submitted  to  the  jury. 

According  to  the  appellant's  statement,  it  is  engaged  in  the 
manufacture  of  a  dye  stuff  called  dinitro-benzole,  which  is  rnade 
by  putting  liquid  nitro-benzole  into  a  receiver,  and  pouring  nitric 
acid  and  sulphuric  acid  into  it  and  mixing  them,  in  which  process 
heat  is  produced  by  chemical  action.  The  liquid  is  then  allowed 
to  cool,  when  the  dinitro-benzole  settles  to  the  bottom,  and  is 
separated  from  the  acids  as  far  as  practicable,  and  then  sub- 
jected to  another  process  in  which  heat  is  mechanically  applied. 

The  testimony  on  the  part  of  the  plaintiff,  if  believed,  showed 
that   he   was   a   common   laborer;   that   he   had   been   employed   by 


'Compare  Raasch  v.  Elite  Laundry,  98  Minn.  357  (1906). 

'"In  the  case  of  young  persons,  it  is  the  duty  of  the  employer  to  take 
notice  of  their  age  and  ability,  and  to  use  ordinary  care  to  protect  them 
from  risks  which  they  cannot  properly  appreciate  and  to  which  they  should 
not  be  exposed.  The  duty  in  such  cases  to  warn  and  instruct  grows  naturally 
of  the  ignorance  or  inexperience  of  the  employee  and  it  does  not  extenu 
to  those  who  are  of  mature  years  and  who  are  familiar  with  the  employment 
and  its  risks"— Rum  melt  v.  Dilworth,  131  Pa.  509  (1889),  per  Williams,  J., 
p.  520;  and  see  Labatt,  Master  and  Servant,  §247  and  notes.  There  is  no  duty 
to  warn  even  minors  of  the  ordinary  risks  and  dangers  of  his  occupation 
which  he  actually  knows  or  which  are  obvious  to  one  of  his  age  and  capacity, 
Truntle  v.  North  Star  Co.,  57  Minn.  52   (1894). 

But  the  master's  duty  is  not  satisfied  by  merely  giving  to  the  minor 
servant  warning  of  the  danger,  he  must  instruct  him  as  to  how  to  avoid  it. 
Strcctam  v.  Trexler  Co.,  13  Pa.  S.  C.  219  (tqoo^.  The  doctrine  peculiar  to 
Pennsylvania  that  there  is  a  presumption  of  incapacity  to  exercise  care  for 
self-protection  before,  and  of  capacity  after,  the  age  of  fourteen  annlies 
onlv  to  contributory  negligence,  Nagle  v.  R.  R.,  88  Pa.  2,^  (1879)  ;  Kehler  v. 
Schivenk.  144  Pa.  348  (1891),  and  not  to  the  question  of  the  master's  duty 
to  instruct  minor  servants. 


WAGNER  7\   JAVNE   CHEMICAL  CO.  95 

the  defendant  occasionally,  prior  to  the  injury  complained  of,  to 
do  such  work  outside  of  the  establishment  as  unloading  boats, 
hauling  barrels  and  digging;  that  on  the  29th  of  August,  1889, 
he  was  re-employed  and  set  to  work  at  some  common  labor  as 
before,  but  soon  after  ordered  to  do  some  work  in  connection  with 
the  process  of  making  dinitro-benzole ;  that  poisonous  fumes  were 
evolved  by  that  process,  which  he  inhaled;  that,  experiencing  dis- 
comfort therefrom,  he  left  the  work,  declaring  that  he  "could  not 
stand  it;"  that  the  defendant's  superintendent  assured  him  that 
the  fumes  would  not  hurt  him,  and  ordered  him  to  return  to  his 
work;  that,  relying  upon  the  superintendent's  assurance,  he  obeyed 
his  order,  but  in  a  few  hours  became  so  sick  that  he  was  ob- 
liged to  go  home,  and  was  thereafter  under  a  physician's  care 
several  months;  and  that  he  had  no  previous  knowledge  of  the 
dangers  to  which  he  was  exposed,  and  was  not  warned  of  them 
by  his  employer.  The  testimony  of  his  physician,  as  well  as  that 
of  three  experts  called  by  him.  strongly  tended  to  show  that  his 
sickness  was  the  result  of  inhaling  the  fumes  evolved  in  the  manu- 
facture of  dinitro-benzole.  There  was  also  testimony  tending  to 
show  that  the  defendant  knew  that  these  fumes  were  poisonous, 
and  had  previously  so  warned  at  least  one  other  workman. 

It  is  a  well-settled  rule  of  law  that  an  employe  will  be  deemed 
to  have  assumed  all  the  risks  naturally  and  reasonably  incident 
to  his  employment,  and  to  have  notice  of  all  risks  which,  to  a 
person  of  his  experience  and  understanding,  are,  or  ought  to  be, 
open  and  obvious.  This  is  a  reasonable  rule,  for,  when  a  man 
seeks  employment  in  any  particular  department,  of  either  industrial 
or  intellectual  activity,  he  thereby  represents  himself  to  be  quali- 
fied by  the  necessary  experience  or  learning,  as  the  case  may  be, 
for  the  performance  of  4he  duties  which  he  proposes  to  assume, 
and  such  experience  or  learning  necessarily  brings  a  knowledge  of 
the  ordinary  risks  of  the  employment.^  Thus,  one  who  holds  him- 
self out  as  a  physician  is  deemed  to  thereby  represent  that  he  pos- 
sesses such  learning  and  skill  as  to  reasonably  qualify  him  for  the 
duties  of  his  profession ;  and  that  learning  will  teach  him  the  danger 
of  exposure  to  contagious  and  infectious  diseases.  But  when  the 
reason  of  the  rule  fails,  the  rule  itself  ceases  to  have  any  applica- 
tion. And  therefore,  while  the  physician  would  have  no  ground 
of  complaint  if  his  health  should  be  permanently  impaired  by  reason 
of  exposure  at  the  call  of  a  patient,  to  a  contagious  or  infectious 
disease,  he  might  recover  damages  for  the  slightest  injury  suffered 
in  consequence  of  a  defect  in  the  floor  of  the  house  which  he  was 
invited  to  enter,  unknown  to  him  but  which  was  known  or  ought 
to  have  been  known  to  his  patron ;  and  this  because  there  is  noth- 
ing in  the  science*  of  medicine,  in  which  he  professes  to  be  learned, 
to  affect  him  with  notice  of  the  latter  danger.  Neither  is  there 
anything  in  the  employment  of  a  common  laborer  that  presupposes 

*"One  of  apparent  maturity  and  average  capacity,  who  solicits  a  partic- 
ular employment  may  be  presumed  to  be  fit"  for  it.  unless  the  master  has 
notice  of  his  inexperience.  Louisville,  etc..  R.  R.  v.  Miller,  104  Fed.  124  (C. 
C.  A.  Circ,  1900),  per  Lurton,  J. 


g6  APPENDIX. 

any  scientific  knowledge,  such  as  a  knowledge  of  the  properties  of 
acids,  or  that  poisonous  fumes  are  likely  to  be  evolved  in  a  manu- 
facturing process  in  which  nitric  acid  is  used ;  and  for  that  reason, 
the  law  does  not  presume  that  such  laborer  either  possesses  or  pro- 
fesses such  knowledge.  And,  although  some  of  the  work  required 
to  be  done  in  the  manufacture  of  dinitro-benzole  may  be  mere 
drudgery,  it  cannot  be  said  to  be  of  such  ordinary  character  in  its 
surroundings  as  to  justify  a  presumption  that  a  common  laborer 
has,  by  experience,  acquired  a  knowledge  of  its  attendant  dangers. 
Without  some  such  previous  knowledge,  either  scientific  or  experi- 
mental, the  dangers,  if  any  there  be,  of  exposure  to  the  fumes  of 
nitric  acid  would  not  be  open  and  obvious,  and  the  laborer  could 
not,  with  propriety,  be  deemed  to  have  assumed  such  risks  unknown 
to  him  as  are  naturally  and  reasonably  incident  to  his  employment. 
(Rummell  v.  Dihvorth,  iii  Pa.  343.) 

On  the  other  hand,  it  is  equally  well  settled  that  an  employer 
is  bound  to  exercise  reasonable  precaution  against  injury  to  his 
employes  while  they  are  in  his  service  and  obeying  his  orders. 
Not  only  must  he  provide  suitable  implements  and  means  with  which 
to  carry  on  the  business  which  he  sets  them  to  do,  but  he  must  warn 
them  of  all  the  dangers  to  which  they  will  be  exposed  in  the  course 
of  their  employment,  except  those  wliich  the  employe  may  be 
deemed  to  have  foreseen  as  necessarily  incidental  to  the  employ- 
ment in  which  he  engages,  or  which  may  be  open  and  obvious  to  a 
person  of  his  experience  and  understanding,  and  except,  also,  such 
as  the  employer  cannot  be  deemed  to  have  foreseen.  And  the  em- 
ployer will  be  presumed  to  be  familiar  with  the  dangers,  latent  as 
well  as  patent,  ordinarily  accompanying  the  business  in  which  he  is 
engaged.  Authorities  upon  these  points  may  be  found  in  great 
abundance  in  the  notes  to  §§  185  to  203  of  Shearman  and  Red- 
field  on  Negligence. 

Keeping  these  principles  in  mind,  it  will  be  seen  that  the  learned 
court  below  could  not  have  given  binding  instructions  to  the  jury 
to  find  for  the  defendant,  without  committing  grave  error.  There 
was  testimony  of  witnesses,  apparently  entitled  to  the  highest  re- 
spect, tending  to  show,  on  the  one  hand,  that  the  fumes  of  nitric 
acid  are  poisonous,  and,  on  the  other  hand,  that  they  arenot.  That 
the  question  thus  raised  was,  if  material,  properly  submitted  to  the 
jury  cannot  be  doubted.  That  it  was  material  is  shown  by  the 
sharpness  of  the  contention  over  it,  for,  if  learned  gentlemen,  who 
have  made  it  the  subject  of  special  study  and  investigation,  cannot 
agree  whether  it  be  injurious  to  the  human  system  to  inhale  such 
fumes,  it  cannot  be  that  the  danger  of  exposure  to  them  is  so 
open  and  obvious  to  a  common  laborer  that  he  should  be  deemed 
to  have  voluntarilv  assumed  the  risk  as  one  incident  to  his  em- 
ployment. There  was  also  evidence,  possibly  open  to  criticism,  but 
which  could  not  be  withheld  from  the  jury,  tending  to  show  that 
the   defendant  had  knowledge  of  the  dangerous  character  of  the 

nitric  acid  fiunes.  .  ,       1  • 

The  evidence  of  contributory  negligence,  coming  from  the  plain- 
tiff, was  not  sufficient  to   justify  the  court  in  directing  a  verdict 


WAGXnU  Z'.   JAVXF.  CIIF.MICAL  CO.  97 

against  him.  It  does  not  appear  that  when  he  quit  work,  saying, 
"I  can't  stand  this,"  he  knew,  or  had  reason  to  beHeve,  that  the 
fumes  would  do  him  permanent  injury.  When  the  superintendent 
assured  him  that  they  would  not  hurt  him,  he  had  a  right  to  rely 
on  that  assurance  and  return  to  his  work.  (Patterson  v.  R.  R.  Co., 
76  Pa.  393.)  In  Beitenmiller  v.  Brezving  Co.,  22  W.  N.  33,  upon 
which  the  defendant  relies,  the  plaintiff  knew  the  danger  to  which 
he  was  exposed ;  he  had  tested  it,  and  retreated  from  it.  Tlie  su- 
perintendent did  not  tell  him  that  ammonia  would  not  hurt  him,  but 
when  directing  him  to  return  to  work,  impliedly  admitted  the  danger 
by  saying  that  the  ammonia  was  not  then  so  bad.  The  statement 
was  not  true,  and  the  moment  the  plaintiff  entered  the  room  that 
fact  must  have  been  so  obvious  that  it  could  not  escape  the  atten- 
tion of  the  dullest  person,  and  therefore,  when  he  continued  his 
work,  he  assumed  the  risk. 

The  fact  that  the  fumes  of  nitric  acid  may  be  perceptible  to 
the  senses  is  conclusive  of  nothing.     The  court  could  not  say,  as 
matter  of  law,  that  every  odor  is  a  warning  of  danger. 
The  judgment  is  affirmed.^ 

'Accord:  McCray  v.  Sterling  Varnish  Co.,  7  Pa.  S.  C.  610  (1898)  ;  Fox 
V.  Peninsular  Works,  84  Mich.  676  (1891)  ;  Rillston  v.  Mather,  156  U.  S.  391 
(1895).  So  a  master  is  liable  to  a  house  servant  who  has  not  been  told  of 
the  existence  of  contagious  disease  in  the  household.  Kleegel  v.  Aitkin,  94 
Wis.  432  (1896),  and  an  inexperienced  nurse  is  entitled  to  instruction  as  to 
the  methods  by  which  she  can  escape  infection.  Hewett  v.  Hospital,  73  N.  H. 
556  (1906). 

So,  if  conditions  are  changed,  during  the  servant's  employment,  it  is 
the  master's  duty  to  warn  the  servant  of  the  dangers  created  thereby.  Burns 
V.  Vesta  Coal  Co.,  223  Pa.  476  (1909). 

While  the  master  is  bound  to  warn  the  -servant  of  all  abnormal  and 
unusual  risks  of  which  he  knows,  or  which,  by  the  exercise  of  care  reason- 
ably to  be  demanded  of  one  carrying  on  his  sort  of  business,  he  could  ascer- 
tain (Hysell  V.  Swift,  67  Mo.  App.  39  [1899]),  but  which  the  servant  cannot 
be  expected  to  perceive  or,  if  he  perceives  them,  appreciate.  Goodale  v.  York, 
74  N.  H.  454  (1908),  and  cases  given  in  the  iiotes  to  §  240.  Labatt  on  .^foster 
and  Servant:  but  not  of  dangers  obvious  to  the  servant  and  capable  of  appre- 
ciation by  one  of  his  apparent  capacity,  Labatt  on  Master  and  Scr^'ant,  §238 
and  notes. 

There  is  no  duty  to  give  instructions  as  to  every  contingency  which  may 
by  any  possibility  arise,  Gilmore  v.  Paper  Co.,  169  Mass.  471  (1897").  A 
manufacturer  is  not  bound  to  instruct  his  operatives  how  to  save  themselves 
in  case  of  fire,  Kleigel  v.  Aitkin,  supra:  but  an  employer  is  bound  to  warn 
his  employees  of  even  transitory  dangers  which  the  master  ought  reasonably 
to  anticipate.  Lord  v.  R.  R.,  74  N.  H.  39  (1906). 

The  master  is  equally  bound  to  warn  or  instruct  a  servant  who  is  directed 
by  one  placed  in  authority  over  him  to  leave  his  general  employment  and 
engage  in  work  unfamiliar  to  him.  Cook  v.  R.  R.,  34  Minn.  45  (1885)  :  Reed 
V.  Stockmyer.  74  Fed.  186  (C.  C.  A.  Circ.  1896")  ;  Staplcton  v.  Citizens' 
Trac.  Co.,  5  Pa.  S.»C.  253  (1897).  A  master  is  liable  to  a  servant  injured  by 
the  unskilfulness  of  a  fellow  servant  set  to  operate  an  intricate  machine 
without  adequate  instructions,  Lebbering  v.  Struthcrs,  157  Pa.  312  (1893). 

As  to  the  relation  between  the  master's  duty  to  warn  and  instruct  inex- 
perienced servants  and  the  (so-called)  defense  of  assumption  of  risk  see 
Northwestern,  etc.,  Co.  v.  Danielson,  57  Fed.  915  (C.  C.  A.  Circ.  1893)  ; 
Bannon  v.  Lufs,  i=;8  Pa.  t66  C1893)  ;  Bohn.  etc..  Co.  v.  Erirkson.  55  Fed.  943 
(C.  C.  A.  8th  Circ,  1893")  ;  Coombs  v.  Ne7V  Bedford  Cordage  Co..  T02  Mass. 
572  (1869)  ;  U.  S.  Rolling  Stock  Co.,  116  III.  100  (1886),  and  other  cases  cited 
in  the  notes  to  §242,  Labatt  on  Master  and  Ser7-aut. 


g8  APPENDIX. 

(f)  Negligence  of  Fellow-servant  Concurring  With  Breach  of 
Employer's  Duty. 


PAULMIER,  ADM'R  OF  CARHART,  v.  ERIE  R.  R.  CO. 

Supreme  Court  of  New  Jersey,  1870.    34  N.  J.  L.  Rep.  151. 

This  was  a  suit  brought  by  an  administrator,  to  recover  dam- 
ages for  the  death  of  the  intestate,  occasioned  by  the  negligence  of 
the  defendants. 

It  appeared  at  the  trial  in  the  Hudson  Circuit  that  the  railroad 
of  the  defendants  ran  through  their  depot  yard  at  Jersey  City,  and 
thence  was  projected  over  the  water  on  trestle  work  for  about 
two  hundred  and  fifteen  feet.  From  this  extension  of  the  track,  the 
cars  were  unloaded  into  boats. 

On  the  occasion  in  question,  this  part  of  the  track  gave  way 
under  the  weight  of  the  engine,  which  was  thereby  thrown  into  the 
water.    The  intestate  was  fireman  on  the  engine,  and  was  drowned. 

The  defendants  admitted  that  this  trestle  work  was  not  safe 
for  locomotives.  Their  defense  was,  that  it  was  not  built  for  the 
engines  to  run  upon ;  that  the  orders  in  the  depot  yard  were,  that 
no  engine  should  be  run  upon  it,  and  that  the  practice  was  to  push 
the  loaded  cars  out  over  the  water  by  means  of  other  cars  inter- 
posed between  them  and  the  locomotive.  There  was  some  evidence 
to  show  that  the  engineer  in  charge  of  the  locomotive  in  question 
had  orders  not  to  permit  his  engine  to  go  beyond  the  fast  land. 
There  was  nothing  in  the  case  which  indicated  that  the  intestate 
had  any  knowledge  of  such  orders. 

There  was  a  verdict  for  plaintifT,  and  a  rule  to  show  cause,  etc. 

Beasley,  C.  J. :  ^  But,  in  the  second  place,  it  was  said  that 
even  on  the  assumption  of  the  presence  of  negligence  on  the  part 
of  the  defendants,  there  was  contributory  negligence  on  the  other 
side,  and  that,  therefore,  there  should  be  no  recovery.  The  negli- 
gence thus  invoked  was  not  that  of  the  intestate,  but  that  of  one 
of  his  fellow  servants.  The  intestate  was  the  fireman  on  the  loco- 
motive, and  it  is  not  asserted  that  he  knew  of  the  insecurity  of  the 
trestle  work,  or  of  the  orders  not  to  go  upon  it.  But  it  is  claimed 
that  the  engineer  in  charge  had  received  such  orders,  and  that  he 
disobeyed  them,  and  that,  by  his  so  doing,  the  accident  occurred. 
I  shall  not  go  aside  to  inquire  whether  the  disobedience  of  such  an 
order  would  have  the  eflfect  of  depriving  the  next  of  kip  ol  this 
engineer  of  a  right  of  action  against  the  company,  though  it  is  obvi- 
ous that  the  disobedience  of  an  order  must  often  be  quite  a  different 
thing  from  the  legal  notion  of  contributory  negligence,  which  always 


*  Those  portions  of  the  opinion  are  omitted  which  decide  that  the  com- 
pany was  bound  not  only  to  order  the  engineers  not  to  run  their  erigines 
on  to  the  trestle,  but  also  to  notify  them  of  its  dangerous  condition  and  that 
the  judgment  must  be  set  aside  because  of  excess  in  the  damages  awardea. 


PAULMIER,    AD.MR.    OF   CARIIART,   1'.    KIUK    K.    R.    CO.  99 

involves  the  circumstance  of  knowingly  exposing  the  person  to  the 
hazard  from  which  the  damage  results ;  for  whatever  may  be  thought 
of  the  position  of  the  engineer,  and  on  the  assumption  that  a  right 
of  suit,  on  account  of  his  misconduct,  does  not  exist  in  his  behalf, 
still,  in  my  apprehension,  the  foundation  of  this  action  remains  un- 
disturbed. The  jury  has  found  the  negligence  of  the  defendants, 
and  if  we  add  to  this,  negligence  of  the  engineer,  we  reach  the  con- 
clusion that  the  injury  to  the  intestate  was  the  result  of  these  two 
conjoint  causes.  For  an  injury  so  caused,  I  think  the  defendants 
are  liable.  The  rule  already  referred  to  is,  that  the  master  is  not 
responsible  to  one  servant  for  the  ill  consequences  of  the  negli- 
gence of  a  fellow  servant,  in  the  course  of  the  common  employment. 
The  reason  for  this  rule  is,  that  as  the  master  cannot  prevent  care- 
lessness in  his  servants,  it  is  reasonable  to  presume  each  servant 
agrees  to  run  the  risk  of  that  which  he  knows,  in  the  nature  of 
things,  to  be  inevitable.  But  the  servant  does  not  agree  to  take  the 
chance  of  any  negligence  on  the  part  of  his  employer;  and  no  case 
has  gone  so  far  as  to  hold  that  where  such  negligence  contributes  to 
the  injury,  the  servant  may  not  recover.  It  would  be  both  unjust 
and  impolitic  to  sufifer  the  master  to  evade  the  penalty  for  his  mis- 
conduct in  neglecting  to  provide  properly  for  the  security  of  his 
servant.  Contributory  negligence,  to  defeat  a  right  of  action,  must 
be  that  of  the  party  injured. - 


*  Accord:  Grand  Trunk  R.  R.  v.  Cummings,  io6  U.  S.  700  (1882)  ;  Hunn 
V.  R.  R.,  78  Mich.  513  (1889);  Loveless  v.  Standard  Oil  Co.,  116  Pa.  427 
(1887);  r^  Petition  Pacific,  etc.,  S.  S.  Co.,  130  Fed.  76  (C.  C.  A.  gth  Circ. 
1904);  Vaisbord  v.  Nashua  Mfg.  Co.,  74  N.  H.^470  (1908),  and  cases  given 
in  Labaft  on  Master  and  Servant,  §  814,  p.  814  ami  notes;  and  sec  Washington, 
etc.,  R.  R.  v.  Hickey,  ante,  p.  %J7  and  notes  thereto.  So,  probably,  in  Pennsyl- 
vania: Wallace  v.  Henderson,  211  Pa.  142  (1905),  semble,  p.  146;  but  see 
Esher  v.  Southwark  Mills  Co..  221  Pa.  180  (1908),  contra  (semble). 

While  many  cases  exhibit  a  marked  tendency  to  revert  in  this  class  of 
case  to  the  doctrine  of  Vicars  v.  Wilcocks,  ante,  p.  107,  and  to  hold  that  the 
negligent  or  consciously  dangerous  actions  of  the  fellow  servant  are  subse- 
quent to  the  breach  of  the  master's  duty,  especially  where  the  delinquent 
servant  knew  of  the  conditions  created  thereby,  is  the  sole  legally  responsible 
cause  of  the  ensuing  harm.  Phila.  &  Reading  Iron  Co.  v.  Davis,  in  Pa.  597 
(1886),  fellow  servant  continuing  to  use  appliance  known  by  him  to  be 
defective;  Gila  Valley  R.  R.  v.  Lyon,  203  U.  S.  465  (1906);  and  cases  cited 
in  note  6,  §8oq,  Lahatt  on  .Master  and  Seri'ant:  tlie  master  is  usually  liable 
though  the  injury  is  immediately  caused  by  some  subsequent  negligent  act 
(Vaisbrod  v.  Co.,  supra)  or  omission  on  the  part  of  a  fellow  servant  (Farrell 
v.  Eastern  Mfg.  Co.,  77  Conn.  484  [igosl  ;  Fitzgerald  v.  Ry.  Co..  200  Mass. 
[1908]  105)  ;  and  even  where  such  fellow  servant,  fully  conscious  of  the 
dangers  created  by  the  master's  breach  of  duty,  he  acts  in  conscious  disregard 
of  his  associates'  safety  fas  in  the  principal  case  and  Noble  v.  Bessemer  S. 
S.  Co.,  I2y  Mich.  lO^'  [1901]).  "The  test  to  determine  whether  the  defendant's 
negligence  was  the  cause  or  the  occasion  of  the  plaintiff's  injury  is  to  inquire 
whether  the  negligence  of  the  (fellow)  "servant  who  wheeled  the  truck" 
(which  striking  a  staging  dislodged  a  plank  from  it  which  was  not  properly 
fastened,  and  which  in  its  fall  struck  the  plaintiff)  would  have  produced  the 
injury,  even  if  they  had  used  ordinary  care  to  prevent  it.  If  it  would,  then 
their  negligence  was  the  occasion  merely;  but  if  his  negligence  would  not 
have  caused  the  injury  if  the  defendants  had  used  ordinary  care  in  its  pre- 


lOO  APPENDIX. 

vention,  then  their  negligence  concurred  with  that  of  the  (fellow)  servant  to 
produce  the  result  of  which  the  plaintiff  complains.  The  servant  who  wheeled 
the  truck  testified  that  if  he  struck  the  horse  (by  which  the  staging  was  sup- 
ported), the  shock  was  so  slight  that  he  did  not  notice  it.  "It  is  obvious  that 
it  can  be  found  from  this  testimony  that  the  plank  could  not  have  fallen  not- 
withstanding the  truck  struck  the  horse  in  passing,  if  the  defendants  had  used 
ordinary  care,  either  to  fasten  the  plank  to  the  horse,  or  the  horse  to  the 
floor."    Young,  J.,  Vaisbord  v.  Co.,  74  N.  H.,  p.  472. 


SKIP!'   i'.    KASTKUN    COUNTIKS   RAILWAY   COMPANY.  lOI 


SECTION  3. 
Assumption  of  Risk 


SKIPP  V.  EASTERN  COUNTIES  RAILWAY  COMPANY. 
Court  of  Exchequer,  1853,  9  Ex.  223. 

At  the  trial,  before  Martin,  B.,  at  the  London  Sittings  in  the 
present  term,  it  appeared  that  the  action  was  brought  by  the  plaintiff 
to  recover  compensation  for  an  injury  he  had  received  whilst  in  the 
service  of  the  company.  The  plaintiff  had  for  many  years  acted  as 
a  guard,  and  had  for  three  months  prior  to  the  accident  been  on 
duty  at  Lea  Bridge  station  upon  the  line.  It  was  his  duty  at  that 
station  to  attach  the  trucks  of  the  goods  train  which  were  to  proceed 
to  Norwich.  The  time  allowed  for  the  the  duty  was  limited,  as  the 
next  passenger  train  followed  in  about  a  quarter  of  an  hour.  In 
attaching  the  trucks  the  plaintiff  was  knocked  down,  and  his  arm 
was  so  severely  injured  that  it  became  necessary  to  amputate  it. 
Evidence  was  given  to  show  that  the  work  was  too  much  for  the 
num.ber  of  servants  employed  by  the  company;  but  it  did  not  apjjear 
that  the  plaintiff  had  ever  made  any  complaint  upon  the  subject  to 
the  company. 

Upon  this  state  of  facts,  the  learned  Judge  was  of  opinion  that 
the  company  was  not  liable.  The  plaintiff's  counsel  requested  that 
the  case  might  be  submitted  to  the  jury,  but  this  his  Lordship  de- 
clined to  do ;  and  the  plaintiff  was  nonsuited. 

James  now  moved  for  a  rule  nisi  for  a  new  trial,  on  the  ground  of 
misdirection. — The  plaintiff  does  not  dispute  the  general  principle 
which  has  been  recognized  and  acted  upon  in  the  cases  of  Hutchinson 
V.  York,  New  Castle  and  Benvick  Kailzvay  Coinpa>iy,  5  Exch.  343. 
Wigmore  v.  Jay,  Id.  354,  and  Priestly  v.  Fozvler,  3  M.  &  W.  i,  that 
a  master  is  not  in  general  liable  to  one  servant  for  damage  resulting 
from  the  negligence  of  another;  but  he  rests  his  present  cause  of 
action  upon  a  different  ground.  The  plaintiff  complains  that  the 
misfortune  occurred  by  reason  of  the  defendants'  omission  to  pro- 
vide a  sufficient  number  of  servants  to  perform  the  work  in  wliich 
he  was  engaged.  The  only  plea  being  not  guilty,  the  first  question 
is,  what  are  the  allegations  in  the  declaration  which  are  admitted. 
The  allegation  of  the  duty  which  the  defendants  have  imposed  upon 
themselves,  and  upon  which  undertaking  the  plaintiff'  entered  their 
service,  is  not  traversed.  [Parke,  B. — The  defendants  were  bound 
to  use  all  due  and  reasonable  care  only.  Here  the  plaintiff  was  en- 
gaged in  the  sam§  work  for  several  months,  and  made  no  complaint 
whatever  as  to  the  inadequacy  of  the  means  employed.  If  he  felt 
that  he  was  in  danger,  by  reason  of  the  want  of  a  sufficient  number 
of  fellow-servants,  he  should  not  have  accepted  the  service.]  The 
time  allowed  for  the  work,  in  the  performance  of  which  the  accident 
occurred,  was  very  limited.  [Platt.  B. — The  case  falls  within  the 
maxim,  volenti  nan  fit  injuria.  Marttn,  B. — I  acted  upon  that  prin- 
ciple at  the  trial,  being  of  opinion  that  the  company  was  not  liable, 


102  APPENDIX. 

as  the  plaintiff  had  done  the  same  work  for  several  months,  without 
any  intimation  on  his  part  that  he  was  unable  to  carry  it  on;  and 
I  therefore  considered  him  a  voluntary  agent.]  It  was  a  question 
for  the  jury,  whether  the  company  had  in  their  employment  a  suffi- 
cient number  of  servants  for  the  performance  of  this  work.  If  they 
had  not,  they  did  not  use  due  and  reasonable  care  to  prevent  danger. 

Parke,  B. — There  ought  to  be  no  rule.  This  is  an  attempt  to 
cast  upon  the  jury  the  duty  of  fixing  the  number  of  servants  which 
a  railway  company  ought  to  have ;  but,  in  a  case  like  the  present,  the 
company  are  themselves  the  proper  judges  of  the  number  they  require 
for  carrying  on  the  business  of  the  line;  and  the  question  proposed 
was  not  a  proper  one  for  the  jury.^ 

Alderson,  B. — As  between  the  public  and  the  company,  the 
former  may  be  the  proper  judges  of  the  number  of  servants  required  ; 
but  that  is  not  so  as  between  the  company  and  their  own  servants. 

Platt,  B.,  concurred. 

Martin,  B. — I  think  that  if  the  case  had  gone  to  the  jury,  they 
must  have  found  a  verdict  for  the  defendants.  But  as  I  entertained 
a  very  strong  opinion  upon  the  matter,  I  thought  it  clearly  to  be  my 
duty  not  to  leave  the  case  to  them,  upon  the  chance  of  their  finding 
a  verdict  for  the  plaintiff  from  motives  of  commiseration.  The 
plaintiff  brought  the  accident  upon  himself,  for,  if  he  found  that  he 
could  not  do  the  work  which  was  set  him,  he  ought  to  have  declined 
it  in  the  first  instance.  He,  however,  carried  it  on  for  several  months, 
and  never  made  the  least  complaint  upon  the  matter. 


Bramwell,  B.,  and  Pollock,  C.  B.,  in  Dynen  v.  Leach,  26  L.  T. 
N.  S.,  221  (1857)  p.  222. 

Bramwell,  B. — There  is  nothing  legally  wrongful  in  the  use 
by  an  employer  of  works  or  machinery  more  or  less  dangerous  to  his 
workmen,  or  less  safe  than  others  that  might  be  adopted.  It  may  be 
inhuman  so  to  carry  on  his  works  as  to  expose  his  workmen  to  peril 
of  their  lives,  but  it  does  not  create  a  right  of  action  for  an  injury 
which  it  may  occasion  when,  as  in  this  case,  the  workman  has  known 
all  the  facts  and  is  as  well  acquainted  as  the  master  with  the  nature 
of  the  machinery  and  voluntarily  uses  it. 

Pollock,  C.  B. — A  servant  cannot  continue  to  use  a  machme 
he  knows  to  be  dangerous  at  the  risk  of  his  employer.^ 

'See  also  Bradley,  J.,  in  Tuttle  v.  R.  R.,  122  U.  S.^  189  (1^6)'  p.  194; 
Danforth,  J.,  in  Sweeney  v.  Berlin  Envelope  Co.,  loi  N.  Y.  520  (1886). 

'  In  England,  at  least  before  the  decision  of  the  House  of  Lords  m 
Smith  V.  Baker,  L.  R.  16  App.  Cases  325  (1891),  the  servant  was  required  to 
allege  and  prove  his  ignorance  of  the  unsafe  state  of  the  master  s  premises 
or  appliances  which  occasioned  his  injury.  Accord:  Peerless  Stone  Co.  y. 
Wrav  143  Ind.  574  (1896)  :  Mellott  v.  R.  R.,  121  Ky.  210  (1897)  ;  Leasotte 
y  R  R  70  N  H  5  (1899)  :  Er(^ns  v.  Co.,  69  N.  H.  664  (1899)  ;  but  see 
oLt^VR:  R..  69' N.  U.  334  (1S98)..  and  Hardy  ..  R  R,,  (f  N  ,H.  533 
(1896)";  Bethlehem  Iron  Works  v.  Weiss,  too  Pa.  45  (C  C.  A.  3rd  Dist. 
900)  semhle,  Gray,  J.,  p.  52.  Since  Smithy.  Baker  however,  %  burden 
seems  to  rest  upon  the  defendant  to  prove  that  the  plaintiff  appreciated  and 


THOMPSON    X'.    IIKKMANX,    I-:t   AL.  IQ-* 

Ellsworth,  J.,  in  Hayden  v.  Smithville  Manufg.  Co.,  29  Con- 
necticut 548,  p.  558: 

Every  manufacturer  has  a  right  to  choose  the  macliinery  to 
be  used  in  his  business  and  to  conckict  that  business  in  the  manner 
most  agreeable  to  himself,  provided  he  does  not  thereby  violate  the 
lav;^  of  the  land.  He  may  select  his  appliances,  and  run  his  mill 
with  old  or  new  machinery,  just  as  he  may  ride  in  an  old  or  new 
carriage,  navigate  an  old  or  new  vessel,  or  occupy  an  old  or  new 
house,  as  he  pleases.  The  employee  having  knowledge  of  the  circum- 
stances, and  entering  his  service  for  the  stipulated  reward,  can  not 
complain  of  the  peculiar  taste  and  habits  of  his  employer,  nor  sue  him 
for  damages  sustained  in  and  resulting  from  that  peculiar  service. 
This  is  just  the  distinction  claimed  by  the  defendants  as  the  law 
of  the  case,  but  the  court  did  not  admit  its  correctness  as  the  law  of 
Connecticut,  though  conceding  it  to  be  the  law  of  England. 

Doubtless  it  is  true  that  no  man  may,  in  conducting  business, 
unnecessarily  and  wantonly  disregard  the  rights  of  other  people, 
whether  employees  or  strangers;  but  such  is  not  the  case  before  the 
court.  An  employee  having  knowledge  can  not  claim  indemnity 
except  under  particular  circumstances.  He  is  not  secretly  or  invol- 
untarily exposed,  and  likewise  is  paid  for  the  exact  position  and 
hazard  he  assumes ;  and  so  he  may  terminate  his  employment  when, 
from  unforeseen  perils,  he  finds  his  reward  inadequate  or  unsat- 
isfactory. 


THOMPSON  V.  HERMANN  AND  OTHERS. 
•  Supreme  Court  of  Wisconsin,  1879,  47  Wisconsin,  602. 

The  averments  of  the  complaint,  as  amended,  and  thus  stated 
by  Mr.  Justice  Orton : 

"The  complaint  charges,  in  effect,  that  the  defendants  are  the 
owners,  and  one  of  them  master,  and  the  plaintiff,  a  seaman  of  the 
vessel  'Surprise,'  sailing  on  Lake  Erie,  between  the  ports  of  Ashta- 
bula and  Erie;  that  while  a  heavy  sea  was  running,  and  the  vessel 
was  pitching  and  rolling  heavily,  the  jaw  rope  of  the  main  gaff 
parted,  and  the  gaff  was  unshipped,  launched  forward  in  front  of 
the  main  mast,  and  swung  over  into  the  main  rigging,  and  that  the 
plaintiff,  with  other  seamen,  was  ordered  by  the  master  to  adjust  the 
gaff,  by  standing  upon  the  lower  boom  and  pulling  upon  the  bow- 


voluntarily  accepted  the  risks  incidental  to  any  dangerous  conditions  existing 
in  the  premises  and  appliances  which  are  not  necessary  and  inherent  in  the 
very  nature  of  the  lousiness  even  though  they  existed  at  the  time  the  employ- 
ment began.  Williams  v.  Birmingham  Co.,  L.  R.  1899,  2  Q.  B.  338.  So  in 
most  American  jurisdictions  it  is  held  that  the  burden  rests  upon  the  master 
to  prove  that  the  servant  knew  of  any  imnecessarily  dangerous  condition  or 
that  it  was  so  obvious  that  he  must  have  known  of  it  had  he  used  his  senses. 
Nadan  v.  White  River  Co..  73  Wis.  120  (1890).  and  cases  cited  Labatt, 
Master  and  Servant,  §841,  note  2.  Tc.ras  Pac.  R.  R.  v.  Archibald,  170  U.  S. 
66s,  semble;  Grim  v.  Omaha  Co.,  114  N.  W.  (Xeb.  1908)  769;  Doivd  v.  R.  7?., 
170  N.  Y.  459  (1902)  ;  Jackson  Lumber  Co.  v.  Cunningham.  141  .'Ma.  206 
(1904)  ;  Valjags  v.  Carnegie  Steel  Co.,  226  Pa.  514  (1910),  semble,  p.  519. 


104  APPENDIX. 

line  fastened  to  one  of  the  horns  of  the  jaw  of  the  gaff,  and  was 
very  Hkely  and  apt  to  sHp  from  said  horn,  which  was  very  smooth, 
worn  and  shppery,  and  cause  plaintiff  to  fall  from  said  boom  to 
the  deck  below,  and  be  thereby  injured,  all  of  which  was  well 
known  to  the  master;  that  the  plaintiff  thinking  it  unsafe  and 
dangerous  to  obey  such  order,  objected  and  protested  against  the 
same,  and  informed  the  master,  and  insisted,  that  the  main  gaff 
could  as  well  be  adjusted  by  means  of  tackle  then  and  there  near 
at  hand,  and  with  safety  to  all  concerned;  but  that  the  master  re- 
fused to  adopt  such  precautionary  means,  and  imperatively  ordered 
the  work  to  be  done  in  the  dangerous  way  above  stated ;  and  that, 
in  the  careful  discharge  of  his  duty  in  obedience  to  such  order,  the 
plaintiff  fell  from  said  boom,  and  was  injured,  by  reason  of  the 
slipping  of  the  bow-line;  and  that  the  master  was  grossly  negligent 
in  not  providing,  adopting  and  using  the  safe  and  proper  means  and 
appliances  for  such  work,  and  in  ordering  and  directing  it  to  be 
done  in  the  dangerous  manner  above  stated." 

A  demurrer  to  the  complaint,  as  not  stating  a  cause  of  action, 
was  sustained ;  and  plaintiff  appealed  from  the  order. 

For  the  appellant,  there  was  a  brief  by  Markhams  8c  Smith, 
and  oral  argument  by  E.  P.  Smith : 

For  the  respondent,  there  was  a  brief  by  Ludwig  &  Somers, 
and  oral  argument  by  Mr.  Somers : 

A  servant  may  decline  any  service  in  which  he  reasonably  ap- 
prehends injury  to  himself  (Paterson  v.  Wallace,  i  Macq.,  748; 
Bucsel  V.  Manufg  Co.,  48  Me.,  113;  i  Add.  on  Torts,  488)  ;  and, 
being  unfettered  by  any  consideration  but  his  own  interests,  if  he 
incurs  hazards  which  prove  injurious,  he  cannot  in  law  complain. 
Moss  V.  Johnson,  22  111.,  633. 

Orton,  J.  We  think  the  amended  complaint  in  this  action 
states  a  cause  of  action,  and  that  the  demurrer  should  have  been 
overruled. 

It  is  objected  by  the  learned  counsel  of  respondent,  that  the 
facts  show  that  the  service  necessarily  required  by  the  employment 
w^as  dangerous,  and  that  the  plaintiff,  by  entering  upon  it,  took  the 
risks  and  hazards  upon  himself,  and  that  he  was  not  bound  to  obey 
orders  requiring  such  service,  and  might  have  declined  the  service, 
and  abandoned  the  employment,  and  was  negligent  in  not  so  doing. 

We  think  that  the  peculiar  character  of  the  employment,  and 
the  relations  existing  between  the  master  and  the  common  seaman 
of  a  merchant  vessel  outside  of  port,  remove  this  case  from  these 
objections  and  the  authorities  cited  to  sustain  them;  and  that, 
although  they  might  be  correct  legal  propositions  in  respect  to  other 
kinds  of  employment,  they  have  scarcely  any  application  here. 

If  each  seaman,  when  ordered  to  perform  any  work  or  duty 
in  the  management  or  repair  of  the  vessel,  were  allowed  by  law 
to  exercise  his  own  free  will,  discretion  and  judgment  in  all  cases 
of  danger,  and  obey  the  master  or  refuse  obedience  at  his  pleasure, 
such  a  right  would  directly  lead  to  general  mutiny,  and  be  fraught 
with  great  danger  and  peril,  not  only  to  the  one  so  insubordinate, 
but  to  all  on  board,  and  to  the  ship  and  cargo  as  well.    The  language 


THOMPSON   Z'.    HERMANN,    ET  AL.  IO5 

of  the  books  is,  that  "disobedience  or  misconduct  of  the  sailor  is 
of  necessity  punishable  with  great  severity,  because  discipline  must 
be  preserved,  and  without  it  the  ship  would  always  be  in  great  peril." 
I  Parsons  on  Maritime  Law,  463.  "By  the  common  law,  the 
master  has  authority  over  all  the  mariners  on  board  the  ship,  and 
it  is  their  duty  to  obey  his  commands  in  all  lawful  matters 
relating  to  the  management  of  the  ship  and  the  preservation  of 
good  order,  and  such  obedience  they  expressly  promise  to  yield 
to  him  by  the  agreement  usually  made  for  their  service.  *  *  * 
Such  an  authority  is  absolutely  necessary  to  the  safety  of  the  ship 
and  of  the  lives  of  the  persons  on  board."  Abbott  on  Shipping, 
177.  "A  deliberate  refusal  to  do  duty  has  always  been  considered 
as  one  of  the  highest  offenses  by  the  maritime  law.  The  power 
to  command  must  reside  somewhere,  and  the  law  has  placed  it  in 
the  master.  He  may  exercise  it  properly,  or  harshly  and  unjustly, 
and  for  this  he  is  answerable  when  he  returns  to  port."  The  Palledo, 
3  Ware,  321. 

"The  master  has  an  absolute  authority  on  board  his  ship,  and 
his  orders,  if  not  unlawful,  are  and  must  be  imperative;  submis- 
sion is  amongst  the  first  duties  of  the  seaman."  United  States  v. 
Smith  &  Coombs,  3  Wash.  C.  C,  525. 

The  seaman  on  a  voyage  has  no  alternative  but  to  obey  or 
suffer  punishment.  He  cannot  dissent  from  or  abandon  the  service 
on  account  of  the  dangers  or  unreasonableness  of  the  particular 
service  required,  as  he  might  do  in  port,  but  must  obey  at  any  risk 
or  hazard  to  himself;  and  yet  he  voluntarily  incurs  no  risk,  but  acts 
upon  the  risk  and  responsibility  of  those  whose  lawful  authority 
demands  of  him  implicit  obedience  to  evejy  lawful  command,  how- 
ever unreasonable  or  dangerous,  to  which  he  reluctantly  submits  to 
his  own  personal  injury.  The  law  which  imposes  upon  the  master 
this  almost  absolute  authority,  also  imposes  upon  him  the  fullest 
responsibility  for  its  careful,  considerate  and  reasonable  exercise  in 
all  emergencies,  and  in  default  of  which  it  also  imposes  upon  him 
a  clear  legal  liability — or  upon  those  he  represents — for  any  per- 
sonal damages  occasioned  by  such  default. 

The  plaintiff,  by  protesting  against  the  dangerous  and  un- 
reasonable manner  of  accomplishing  the  object  proposed,  and  by 
which  he  was  injured,  and  suggesting  a  safer  and  more  reasonable 
way  of  accomplishing  the  same  object,  and  then  submitting  to  the 
order  and  authority  of  the  master,  and  attempting  to  do  tiie  work 
required  in  a  careful  and  prudent  manner,  did  his  whole  duty,  and 
thereby  removed  from  himself  all  of  the  responsibility.  The 
master,  by  declining  and  rejecting  the  safer  and  reasonable  manner 
proposed  by  the  -plaintiff,  and  by  gross  carelessness  imperatively 
commanding  the  plaintiff'  to  perform  the  work  in  the  more  danger- 
ous way.  assumed  all  of  the  responsibility  and  risk  for  the  defend- 
ants. The  plaintiff  entered  upon  this  dangerous  service  under  duress 
and  submission  to  compulsion,  without  the  liberty  of  choice  or 
freedom  of  the  will,  and  is  therefore  not  responsible  for  his  acts, 
without  negligence.  "Cases  may  and  do  arise  when  instant 
obedience  to  the  orders  of  the  mate  is  necessary;  such  as  orders  to 


I06  APPENDIX. 

take  in  sail  in  a  sudden  squall,  or  to  cut  away  the  rigging  or  spars, 
or  to  go  aloft  on  a  sudden  emergent  duty,  when  the  mate  may 
instantly  enforce  obedience  by  the  application  of  positive  force,  and 
indeed  of  all  the  force  required  to  produce  prompt  obedience." 
Flanders  on  Shipping,  §  73;  United  States  v.  Hunt,  2  Story  C. 
C,  125 ;  United  States  v.  Taylor,  2  Sumner,  588. 

The  plaintiff  avers  that  he  used  care,  or  was  not  in  fault,  in 
attempting  with  others  to  execute  the  orders  of  the  master,  and 
that  he  submitted  to  the  judgment  and  authority  of  the  master  after 
protest,  and  this  most  clearly  brings  himself  within  the  protection 
of  these  principles,  and  establishes  his  right  of  recovery.  He  could 
not  have  safely  or  lawfully  done  otherwise  than  submit  under  the 
circumstances ;  for  his  disobedience  would  have  been  revolt  and 
mutiny,  and  he  would  have  been  liable  to  personal  hazard  and  pun- 
ishment ;  and  to  hold  under  such  circumstances,  that  he  cannot 
recover  for  his  personal  injuries,  received  without  any  fault  of  his 
own,  and  solely  by  the  careless  and  unreasonable  orders  of  his 
superior,  would  be  outrageously  unjust. 

By  The  Court:  The  order  of  the  county  court  sustaining 
the  demurrer  to  the  amended  complaint  is  reversed,  with  costs,  and 
the  cause  remanded  for  further  proceedings  according  to  law.^ 


^Accord:  Lafourche  Packet  Co.  v.  Henderson,  94  Fed.  871  (C.  C.  A.  5th 
Circ.  1899)  ;  The  Frank  &  Willie,  45  Fed.  494  (1891)  ;  Keating  v.  Pacific  Co., 
21  Wash.  415  (1899)  ;  Eldridge  v.  Atlas  S.  S.  Co.,  134  N.  Y.  187  (1892)  ; 
Haight,  J.,  dissenting  on  the  ground,  inter  alia,  that,  the  ship  being  in  port. 
the  plaintiff  "could  have  left  the  vessel  and  sought  the  protection  of  his 
consul  if  the  orders  of  his  master  vi^ere  unlawful,"  see  Oregon  Lumber  Co.  v. 
Portland  S.  S.  Co.,  162  Fed.  912  (1908),  bargeman  on  barge  coaling 
in  harbor  held  to  assume  risk.  This  applies  to  all  cases  where  the 
plaintiff  being  legally  compelled  to  work  for  the  defendant  can  not 
abandon  the  work  when  he  discovers  that  it  has  become  undul}'  hazard- 
ous, Chattahoochee  Bridge  Co.  v.  Bras-well,  92  Ga.  631  (1893)  ;  Dalheini 
v.  Lenen,  45  Fed.  225  (1891)  ;  convicts,  whose  services  had  been  sold  by  the 
State  to  contractors  (as  to  the  effect  of  statutes,  which  deny,  under  penalties. 
the  servant's  right  to  leave  his  employment,  see  Poirier  v.  Campbell,  35  La. 
An.  699  [1883],  and  to  cases  where  the  master  exercises  an  actual  though 
illegal  compulsion  by  violence  of  threats.  Wells  and  French  Co.  v.  Gortorski. 
SO  111.  App.  445  (1893).  So  it  is  held  that  the  plaintiff,  when  he  is  by  law 
compelled  to  serve  the  defendant,  does  not  assume  the  risk  of  injury  of  those 
working  with  him,  Boswele  v.  Barnhart,  96  Ga.  521  (1895),  convict,  injured 
by  negligence  of  boss  of  "chain  gang";  Tozeland  v.  West  Ham.  Union,  L.  R., 
1906,  I  Q.  B.  538,  pauper  required  by  the  Poor  Laws  Acts  to  do  such  work 
as  the  labor  master  of  the  workhouse  assigned  to  him;  Smith  \.  Steele,  L.  R. 
10,  Q.  B.  125  (1875),  pilot,  who  was  by  law  required  to  give  his  services  to 
any  vessel  requiring  them. 

So,  a  servant,  who  while  at  work  discovers  that  the  appliances  are 
defective,  will  not  be  taken  to  have  assumed  the  risk  thereof  by  continuing 
his  service  if  by  abandoning  it  he  will  imperil  the  lives  of  others  or  seriously 
derange  the  business  of  his  master.  Irvine  v.  R.  R..  89  Mich.  416  (1891). 
brakeman  sent  to  set  brakes  to  prevent  collision  discovers  that  they  are 
dangerouslv  unsafe.  Mason  &  O.  R.  R.  v.  Yockcy,  103  Fed.  265  (C.  C.  A. 
6th  Cir  1900),  engineer  discovering  defect  in  engine  while  on  the  road,  sec 
also  Brewer,  J.,  in  O'Rourke  v.  R.  R.,  22  Fed.  189  (1884),  p.  191 :  Fordyce  v. 
Edzvard.  60  Ark.  4.38  (1895).  and  see  also  Kane  v.  R.  R.  128  U.  S.  oi  (i«8«\ 
where,  however,  the  conductor  had  promised  th^  plaintiff,  a  brTk-->'-"i.  to 
remove  the  defective  car  at  the  next  station.  In  such  circumstanc-s  the 
plaintiff  is  barred  from  recoverv  only  if  the  risk  of  injury  is  so  grent  and 
imminent  as  to  make  it  imprudent  for  him  to  face  it.     See  the  above  cases. 


ST.  LOUIS   CORDAGI-:   CO.   Z'.    MILLKR.  I07 


ST.  LOUIS  CORDAGE  CO.  r.  MILLER. 
Circuit  Court  of  Appeals,  Eighth  Circuit,  1903,  126   Federal,  495. 

Sanborn,  J. — The  defendant  did  not  plead  in  this  case  that  the 
plaintiff  was  guilty  of  contributory  negligence.  Its  only  defense 
was  that  the  rapidly  revolving  cogs  were  seen  and  known  by  the 
plaintiff,  that  the  danger  from  them  was  apparent,  and  that  she  as- 
sumed the  risk  of  it.  These  are  the  questions,  therefore,  which  the 
instruction  to  the  jury  presents :  Are  the  risks  from  defective  place 
of  employment,  appliances,  and  fellow  servants  which  employes 
assume  by  entering  and  continuing  in  the  service  of  a  master  with 
knowledge  of  the  situation  and  its  dangers  and  without  complaint, 
limited  to  those  risks  the  danger  from  which  is  so  imminent  that 
persons  of  ordinary  prudence  would  not  incur  them?  Or  do  the  risks 
capable  of  assumption  in  this  way  include  those  less  serious  chances 
which  servants  of  ordinary  prudence  would  and  do  incur? 

The  charge  of  the  court  answered  the  first  of  these  questions 
in  the  affirmative,  and  the  second  in  the  negative.  It  was,  in  effect, 
that  the  defense  of  assumption  of  risk  and  the  defense  of  contrib- 
utory negligence  were  identical  in  effect  and  coterminous  in  extent, 
that  no  servant  in  the  exercise  of  due  care  can  lawfully  assume  the 
risk  of  a  defective  place,  defective  machinery,  or  defective  appli- 
ances, and  that  it  is  only  where  the  danger  from  them  is  so  grave 
that  no  prudent  person  would  chance  it  that  a  servant  can  lawfully 
contract  to  take  the  chance  of  the  injury  which  they  may  inflict 
upon  him.^ 

It  is  said  that  if,  by  entering  or  continuing  in  the  service,  an 
employe  may  assume  the  risk  of  a  defect  which  arises  from  the 
violation  of  the  duty  o|  the  master  to  exercise  ordinary  care  to 
provide'  a  reasonably  safe  place  or  reasonably  safe  appliances,  the 
master  may  be  in  large  part  relieved  from  the  discharge  of  this  duty, 
and  may  be  led  to  furnish  more  defective  places  and  appliances 
than  he  otherwise  would  do,  and  that  for  this  reason  the  doctrine 
of  assumption  of  risk  ought  not  to  be  permitted  to  apply  in  cases 
in  which  the  danger  is  not  so  imminent  that  prudent  persons  would 
not  incur  it.  The  answer  to  this  contention  is:  (i)  That  the 
servant  is  constantly  at  liberty  to  accept  or  reject  the  employment, 
and  may  do  so  at  any  time  in  case  the  wages  do  not  in  his  opmion 
compensate  him  for  the  hazards  as  well  as  the  work  of  his  avoca- 
tion;  that  he  ought  in  the  first  instance  to  assume  the  known  or 
obvious  risks  of  the  employment,  because  his  constant  use  of  the 
place  and  appliances   necessarily  makes   him  more     familiar    with 

'  "This  instruction,"  he  goes  on  to  say,  "was  undoubtedly  inspired  by  the 
opinion  of  the  majority  of  this  court  in  Southern  Pacific  Co.  V.  Yeargni.  109 
Fed  436  to  which  the  writer  never  assented."  He  then  proceeds  to  examine 
the  authorities  cited  in  support  of  it ;  a  number  he  dismisses  as  having  been 
decided  on  the  ground  that  the  master  had,  upon  complaint  made  by  the 
servant,  promised  to  remedy  the  defect  (see  Schlitc  v.  Pabsf  Co  post),  and 
the  others  he  finds  to  be  cases  in  which  the  defense  was  contributory  negli- 
gence and  not  assumption  of  risk  or  else  cases  when  the  two  are  said  to  be 
identical  and  interchangeable. 


I08  APPENDIX. 

them  than  in  the  nature  of  things  his  master  or  inspector  can  ordi- 
narily be;  and  (2)  that  by  a  simple  complaint  to  his  employer  he 
may  relieve  himself  from  the  assumption  of  the  risk  for  a  reason- 
able time  to  enable  the  master  to  remove  the  defect.  But  a  dis- 
cussion here  of  the  question  what  the  rule  of  law  upon  this  subject 
ought  to  be  will  prove  fruitless  if  that  rule  is  already  established 
by  controlling  authority,  and  the  question  whether  or  not  it  has 
become  thus  settled  will,  therefore,  first  be  considered.  Is  it  the 
law  of  assumption  of  risk  declared  or  sustained  by  the  decisions  of 
the  Supreme  Court  which  are  controlling  here,  that  the  risks  which 
may  be  lawfully  assumed  are  those  only  from  which  the  danger  is 
so  imminent  that  no  prudent  person  would  incur  it?  Is  it  the  law 
generally  adopted  by  the  federal  courts,  and  usually  applied  by  the 
courts  of  the  states?  If  it  is,  many  courts  have  misconceived  this 
rule,  and  the  books  are  full  of  long  lines  of  erroneous  decisions  upon 
this  subject. 

The  danger  from  unblocked  frogs  upon  a  railroad  is  not  so 
imminent  that  employes  of  ordinary  care  and  prudence  would  not 
and  do  not  engage  and  continue  to  operate  trains  over  them,  and 
yet  the  Supreme  Court  and  other  courts  hold  that  such  servants 
assume  the  risk  of  the  injuries  which  they  may  entail.  Southern  Pac. 
Co.  v.  Seley,  152  U.  S.  145,  155.- 

The  danger  of  injury  from  low  bridges  on  railroads  is  not 
so  grave  that  servants  of  ordinary  prudence  and  care  would  not 
and  do  not  engage  and  continue  to  operate  railroads  through  them, 
and  yet  they  assume  the  risk  of  the  injuries  which  result  from  these 
bridges.  Myers  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  95  Fed.  406 
407;  Brossman  v.  Railroad  Co.,  113  Pa.  490,  6  Atl.  226.' 

The  doctrine  of  assumption  of  risk  is  placed  by  the  authorities 
and  sustained  upon  two  grounds.  That  doctrine  is  that,  while  it  is 
the  duty  of  the  master  to  exercise  ordinary  care  to  provide  a  reason- 
ably safe  place  for  the  servant  to  work  and  reasonably  safe  appli- 
ances for  him  to  use,  and  while,  unless  he  knows  or  by  the 
exercise  of  reasonable  care  would  have  known  that  this  duty  has 
not  been  discharged  by  the  master,  he  may  assume  that  it  has  been, 
and  may  recover  for  any  injury  resulting  from  the  failure  to  dis- 
charge it,  yet  he  assumes  all  the  ordinary  risks  and  dangers  incident 
to  the  employment  upon  which  he  enters  and  in  which  he  con- 
tinues, including  those  resulting  from  the  negligence  of  his  master 
which  are  known  to  him,  or  which  would  have  been  known  to  a 
person  of  ordinary  prudence  and  care  in  his  situation  by  the  exer- 


'  Citing  also  Appel  v.  R.  R.,  11 1  X.  Y.  550;  Gillen  v.  R.  R.,  93  Me.  80; 
Wood  V.  Locke,  147  Mass.  604;  Mayes,  Adni.  v.  R.  R.,  63  Iowa  563. 

'Citing  also  Smith  v.  R.  R.,  42  Minn.  87;  Devift  v.  R.  R.,  50  Mo.  302. 
He  then  gives  instances  of  a  number  of  other  situations  in  which  servants 
have  been  held  to  have  assumed  the  risk  of  injury  from  conditions  where 
the  danger  of  injury  was  not  so  grave  as  to  deter  persons  of  prudence  from 
working  under  them.  Cudahy  Co.  v.  Marcan,  106  Fed.  645;  Hoard  v. 
Blackstone.  177  Mass.  69;  Bohn  Co.  v.  Erickson,  55  Fed.  943:  Gowen  v.  Har- 
ley,  56  Fed.  973 ;  Moiey  v.  Pickle  Marble  Co.,  74  Fed.  155 ;  King  v.  Morgan, 
109  Fed.  446. 


ST.   LOUIS  COKOAGl-:  CO.   Z'.    MILLKR.  lO^J 

cise  of  ordinary  diligence.  The  first  ground  upon  which  this  rule 
of  law  rests  in  the  maxim,  volenti  non  fit  injuria.  A  servant  is  not 
compelled  to  begin  or  continue  to  work  for  his  master.  Ordinarily, 
he  does  not  work  for  him  under  a  contract  for  a  stated  time.  He 
is  at  liberty  to  retire  from  his  employment,  and  his  master  is  free 
to  discharge  him,  at  any  time.  The  latter  constantly  offers  him  day 
by  day  his  wages,  his  place  to  work,  and  the  appliances  which  he 
is  to  use.  The  former  day  by  day  voluntarily  accepts  them.  By 
the  continuing  acceptance  of  the  work  and  the  wages  he  voluntarily 
accepts  and  assumes  the  risk  of  the  defects  and  dangers  which  a 
person  of  ordinary  prudence  in  his  place  would  have  known.  No 
one  can  justly  be  held  liable  to  another  for  an  injury  resulting 
from  a  risk  which  the  latter  knowingly  and  willingly  consented  to 
incur.  Fitzgerald  v.  Connecticut  River  Paper  Co.,  155  Mass.  155, 
161 ;  Leary  v.  Boston  &  Albany  Railroad,  139  Mass.  580;  Bxizzcll  v. 
Laconia  Mfg.  Co.,  48  Me.  113;  Mundle  v.  Mfg.  Co.,  86  Me.  400, 

407- 

The  second  ground  upon  which  assumption  of  risk  is  based  is 
that  every  servant  who  enters  or  continues  in  the  employment  of  a 
master  without  complaint  thereby  either  expressly  or  impliedly 
agrees  with  him  to  assume  the  risks  and  dangers  incident  to  the 
employment  which  a  person  of  ordinary  prudence  in  his  situation 
would  have  known  by  the  exercise  of  ordinary  diligence  and  care, 
and  to  hold  his  master  free  from  liability  therefor.  Thus  a  niaster 
employs  a  servant  to  tear  down  or  repair  a  building  that  is  ob- 
viously in  danger  of  falling  upon  the  workman.  The  latter  per- 
ceives the  dangerous  character  of  the  place,  and  agrees  upon  the 
wages  he  will  accept  to  perform  it.  The  building  falls  upon,  and 
injures  him.  He  cannot^recover  of  his  employer,  because  he  will- 
ingly assumed  the  risk.  Another  employs  a  servant  to  feed  crude 
rubber  between  revolving  rollers,  and  in  pushing  the  material 
through  the  rollers  his  hand  is  caught  and  crushed.  He  cannot 
recover  for  his  injury,  because  he  voluntarily  assumed  the  risk 
which  the  rollers  and  their  use  entailed.  Sullivan  v.  Simpler  Elec- 
trical Co.,  178  Mass.  35,  39.  59  X.  E.  645.  A  third  employs  a 
servant  to  paint  hatchets  under  a  rack  upon  which  they  are  placed 
to  dry.  During  his  employment  this  rack  which  safely  held  the 
hatchets  is  removed  and  a  new  one  is  substituted  for  it  which  is 
dangerous  because  the  jar  sometimes  dislodges  the  hatchets  and 
causes  them  to  fall  upon  the  workman  below.  Nevertheless  the 
servant  continues  to  paint  beneath  them.  A  hatchet  falls  upon 
and  injures  him.  He  cannot  recover  of  his  master  for  the  injury, 
because  he  has  voluntarily  assumed  the  risk;  and  this  is  none  the 
less  true,  says  Mr.  Justice  Holmes,  that  fear  of  loss  of  his  place 
induced  him  to  stay.  Lamson  v.  American  A.vc  &  Tool  Co..  177 
Mass.  144,  145.  58' N.  E.  585,  83  Am.  St.  Rep.  267.  In  the  first 
case  the  danger  may  have  been  so  imminent  that  a  person  of  ordi- 
nary prudence  would  not  have  entered  upon  or  continued  in  the 
employment.  But  in  the  two  other  cases  it  certainly  was  not  of  that 
character.  The  truth  is  that,  while  assumption  of  risk  and  contrib- 
utory negligence  both  apply  to  prevent  a  recovery  in  cases  in  which 


T  lO  APPENDIX. 

the  servant  has  knowingly  and  wilUngly  exposed  himself  to  dan- 
gers too  imminent  for  prudent  persons  to  incur,  they  are  neither 
identical  in  effect  or  coincident  in  extent,  and  the  latter  has  no  appli- 
cation and  constitutes  no  defense  in  that  great  majority  of  cases  in 
which  assumption  of  risk  is  an  impregnable  bar  to  a  recovery  where 
prudent  persons  assume  the  obvious  dangers  of  their  employments 
which  are  neither  imminent  nor  great.  Assumption  of  risk  is  the 
voluntary  contract  of  an  ordinarily  prudent  servant  to  take  the 
chances  of  the  known  or  obvious  dangers  of  his  employment  and  to 
relieve  his  master  of  liability  therefor.  Contributory  negligence 
is  the  causal  action  or  omission  of  the  servant  without  ordinary 
care  of  consequences.  The  one  rests  in  contract,  the  other  in  tort. 
Contributory  negligence  is  no  element  or  attribute  of  assumption 
of  risk.  The  latter  does  not  prevail  because  the  servant  was  or 
was  not  negligent  in  making  his  contract  and  in  exposing  himself 
to  the  defect  and  danger  which  injured  him,  but  because  he 
voluntarily  agreed  to  take  the  risk  of  them.  No  right  of  action 
in  his  favor  in  such  a  case  can  arise  against  the  master,  because 
the  latter  violates  no  duty  in  failing  to  protect  the  servant  against 
risks  and  dangers  which  the  latter  has  voluntarily  agreed  to  assume 
and  to  hold  the  former  harmless  from. 

The  clear  distinction  between  assumption  of  risk  and  con- 
tributory negligence  has  been  repeatedly  announced  and  constantly 
maintained  in  the  federal  courts  and  in  most  of  the  courts  of  the 
States.* 

In  Pcirce  v.  CJavin,  82  Fed.  550,  553,  the  Circuit  Court  of  Ap- 
peals of  the  Seventh  Circuit,  in  an  opinion  delivered  by  Judge 
Jenkins,  said : 

"The  court  below  ignored  wholly  the  doctrine  of  assumption 
of  risk,  and  refused  the  instructions  requested  in  that  behalf,  erro- 
neously supposing  that  absolute  knowledge  of  the  defect  which 
existed  during  the  entire  time  of  his  service  could  not,  under  any 
circumstances,  amount  to  an  assumption  of  risk,  but  merely  cast 
upon  him  greater  care  in  the  use,  or  in  avoiding  danger  from  the 
defective  appliance.  This  is  manifest  error,  for  which  we  think 
the  judgment  must  be  reversed.  The  doctrine  of  assumption  of 
risk  is  not  to  be  confounded  with  the  doctrine  of  contributory 
negligence ;  for.  where  the  former  doctrine  is  applicable,  the  ser- 
vant may  exercise  the  greatest  care,  and  yet  be  precluded  from 
recovery  for  an  injury  in  the  performance  of  his  service,  because 
the  risk  was  assumed.  Miner  v.  Railroad  Co.,  153  Mass.  398,  26 
N.  E.  994." 

To  the  same  effect  is  the  opinion  of  the  Circuit  Court  of  Ap- 


*In  addition  to  the  quotations  from  Pcirce  v.  Chivin  and  Narramore  v. 
Ry.  Co.,  he  also  gives  lengthy  quotations,  from  Washington  R.  R.  v.  McDade, 
135  U.  S.  554;  Union  Pac.  R.  R.  v.  O'Brien,  i6r  U.  S.  451  ;  Choctaw,  Etc.,  R. 
R.  V.  McDade,  191  U.  S.  64;  Miner  v.  R.  R.,  153  Mass.  398,  and  Hesse  v. 
R.  R.,  58  Ohio  St.  167.  which  are  omitted,  and  see  Jaggard.  J.,  in  Rase  v. 
R.  R.,  "107  Minn.  260  (1909)  ;  Elkin,  J.,  in  Bowen  v.  P.  R.  R.,  219  Pa.  405 
(1908),  and  21  Har.  L.  R.,  pp.  245  to  251;  but  see  Brewer,  J.,  22  Fed.  189 
(1884). 


ST.   LOUIS   CORDAGi:   CO.    T".    MILLP-H.  Ill 

peals  of  the  Sixth  Circuit  in  Narramorc  v.  Cleveland,  etc.,  Ry.  Co.. 
96  Fed.  298,  301,  304,  305,  where  Judge  Taft,  delivering  the  opinion 
of  that  court,  said : 

"Assumption  of  risk  is  a  term  of  the  contract  of  employment, 
express  or  implied  from  the  circumstances  of  the  employment,  by 
which  the  servant  agrees  that  dangers  of  injury  obviously  incident 
to  the  discharge  of  the  servant's  duty  shall  be  at  the  servant's 
risk.  In  such  cases  the  acquiescence  of  the  servant  in  the  conduct 
of  the  master  does  not  defeat  a  right  of  action  on  the  ground  that 
the  servant  causes  or  contributes  to  cause  the  injury  to  himself, 
but  the  correct  statement  is  that  no  right  of  action  arises  in  favor 
of  the  servant  at  all,  for,  under  the  terms  of  the  employment,  the 
master  violates  no  legal  duty  to  the  servant  in  failing  to  protect 
him  from  dangers  the  risk  of  which  he  agreed  expressly  or  im- 
pliedly to  assume.  The  master  is  not,  therefore,  guilty  of  actionable 
negligence  towards  the  servant."  Pages  501,  502,  37  C.  C.  A.,  and 
page  301,  96  Fed. 

After  discussing  various  cases  in  which  servants  had  entered 
or  continued  in  the  employment  of  their  masters  after  discovering 
defects  in  machinery,  he  said : 

"Assumption  of  risks  is  in  such  cases  the  acquiescence  of  an 
ordinarily  prudent  man  in  a  known  danger,  the  risk  of  which  he 
assumes  by  contract.  Contributory  negligence  in  such  cases  is  that 
action  or  non-action  in  disregard  of  personal  safety  by  one  who, 
treating  the  known  danger  as  a  condition,  acts  with  respect  to  it 
without  due  care  of  its  consequences."  Page  504,  37  C.  C.  A.,  and 
page  304,  96  Fed. 
And  again : 

"Assumption  of  risk  and  contributory  negligence  approximate 
where  the  danger  is  so  lobvious  and  imminent  that  no  ordinarily 
prudent  man  would  assume  the  risk  of  injury  therefrom.  But  where 
the  danger,  though  present  and  appreciated,  is  one  which  many  men 
are  in  the  habit  of  assuming,  and  which  prudent  men  who  must 
earn  a  living  are  willing  to  assume  for  extra  compensation,  one  who 
assumes  the  risk  cannot  be  said  to  be  guilty  of  contributory  negli- 
gence if,  having  in  view  the  risk  of  danger  assumed,  he  uses  care 
reasonably  commensurate  with  the  risk  to  avoid  injurious  conse- 
quences. One  who  does  not  use  such  care,  and  who,  by  reason 
thereof,  suffers  injury,  is  guilty  of  contributory  negligence,  and 
cannot  recover,  because  he,  and  not  the  master,  causes  the  injury, 
or  because  they  jointly  cause  it."  Page  505,  37  C.  C.  A.,  and  page 
304,  96  Fed.  ■     ■  , 

The  unavoidable  logical  deduction  from  the  principles  and 
decisions  to  whigh  we  have  adverted  is  that  assumption  of  risk 
and  contributory  negligence  are  distinct  and  independent  defenses, 
that  the  former  rests  in  contract  and  upon  the  maxim,  volenti  non 
fit  injuria,  and  is  not  conditioned  or  limited  by  the  probability  or 
improbability,  the  imminence  or  the  remoteness,  of  the  danger  from 
the  risk  assumed,  or  bv  the  existence  or  by  the  absence  of  con- 
tributory or  other  negligence  on  the  part  of  the  party  who  under- 
takes to  assume  the  risk,  while  contributory  negligence  is  founded 


112  APPENDIX. 

Upon  an  absence  of  ordinary  care  which  causes  or  contributes  to 
the  injury  which  is  the  basis  of  the  suit. 

Nor  is  the  distinction  between  assumption  of  risk  and  con- 
tributory negligence  less  marked,  nor  is  the  former  defense  less 
applicable  in  cases  of  defects  and  dangers  which  arise  during  the 
continuance  of  the  employment  than  in  those  involving  defects  which 
exist  when  the  employe  enters  upon  the  service.^  The  suggestion 
that  in  the  former  class  of  cases  there  is  no  consideration  for  the 
contract  of  assumption  because  the  wages  are  not  increased  with 
the  hazards  is  not  persuasive.  The  answer  to  it  is:  (i)  The 
doctrine  of  assumption  of  risk  is  founded  on  the  maxim,  volenti 
110)1  fit  injuria,  as  well  as  upon  the  express  or  implied  contract  aris- 
ing from  the  employment,  and  continuance  in  the  employment  after 
new  defects  and  dangers  become  obvious  is  conclusive  evidence 
of  a  willing  assumption  of  the  risk  which  they  entail;  and  (2) 
since,  in  ordinary  employments,  contracts  for  times  certain  do  not 
exist,  and  either  party  is  at  liberty  to  terminate  the  service  at  any 
time,  there  is  in  fact  a  constantly  recurring  daily  offer  and  daily 
acceptance  of  the  risks  of  the  known  or  obvious  dangers  and 
defects  of  the  place  and  of  the  appliances,  and  of  the  wages  tendered 
to  induce  an  assumption  of  the  work  and  the  hazards.  The  reason 
which  underlies  the  entire  rule  is  that  the  servant  who  is  constantly 
working  in  the  place  provided  for  him  and  daily  using  the  tools  and 
appliances  furnished  to  him  is  more  likely  to  know  and  to  appre- 
ciate the  dangers  from  defects  in  them  than  the  master  or  his 
inspector,  who,  in  the  very  nature  of  things,  cannot  see  and  know 
them  so  frequently  and  intimately  as  the  employe  who  constantly 
uses  them.  This  was  the  reason  which  induced  the  application  of 
this  rule  to  defects  and  dangers  existing  when  servants  enter  upon 
their  engagements,  and  when,  in  the  nature  of  things,  they  are  far 
less  familiar  with  the  defects  and  dangers  incident  to  their  avoca- 
tions than  they  subsequently  become  after  they  have  been  long  in 
the  service.  The  reason  of  the  rule  applies  with  much  greater  force 
to  dangers  which  arise  and  become  known  or  are  obvious  to  ser- 
vants during  their  employment,  because  they  have  then  become 
more  familiar  with  their  place  and  their  appHances,  and  have  earlier 
and  better  means  of  knowledge,  and  generally  a  better  knowledge 
of  changes  in  them,  and  of  the  effect  and  dangers  of  such  changes. 


'See,  however,  contra,  Cockburn,  C.  J.,  and  Byles,  J.,  in  Clark  v.  Holmes, 
7  H.  &  N.  937  (1862).  The  former  says,  p.  944,  "through  the  negligence  of 
the  master  in  omitting  to  keep  the  machinery  fenced,  the  servant  has  been 
exposed  to  dangers  to  which  he  ought  not  to  have  been  subjected;  and  the 
injury  having  thus  arisen,  the  defendant  is  justly  and  properly  liable;"  and 
the  latter  says,  p.  949,  "the  original  contract  was  to  work  with  fenced 
machinery,  and  it  was  his  master,  and  not  he,  has  violated  the  condition,  and 
by  so  doing  exercised  a  species  of  compulsion  over  the  servant."  See  also 
Lindley,  L.  J.,  in  Yarmouth  v.  France,  19  Q.  B.  D.  647  (1887)  p.  661— a  case 
which  is  expressly  stated  to  have  been  decided  on  this  very  ground  by 
Lindley,  L.  J.,  and  Coleridge,  C.  J.,  in  their  decision  in  the  Court  of  Appeals  in 
the  case  of  Smith,  v.  Baker,  5  Times  L.  R.  518  (1889)  ;  the  former  saying: 
"The  plaintiff  there  was  employed  to  drive  a  cart,  and  a  vicious  horse  was 
put  upon  him,  and  he  complained.     He  was  not  employed  to  break  or  drive 


ST.  LOUIS  CORDAGE  CO.  f.    MILLER.  113 

than  they  had  of  the  dangers  and  defects  incident  to  the  original 
employment,  and  than  their  master  or  his  inspectors  can  possibly 
obtain." 

The  authorities  and  opinions  to  which  reference  has  now  been 
made  have  forced  our  minds  irresistibly  to  the  conclusion  that  the 
following  rules  of  law  have  become  irrevocably  settled  by  the  great 
weight  of  authority  in  this  country,  and  by  the  opinions  of  the 
Supreme  Court,  which,  upon  well-settled  principles,  must  be  per- 
mitted to  control  the  opinion  and  action  of  this  court : 

A  servant  by  entering  or  continuing  in  the  employment  of  a 
master  without  complaint  assumes  the  risks  and  dangers  of  the  em- 
ployment which  he  knows  and  appreciates,  and  also  those   which 


vicious  horses."  The  great  weight  of  English  authority  is  in  accordance  with 
the  law  as  stated  in  the  principal  case.  Before  the  Employers'  Liability  Act 
of  1880,  the  servant  was  required  to  allege  and  prove  his  ignorance  of  the 
defective  condition  which  had  caused  his  injury  (Griffith  v.  St.  Katlierine's 
Docks,  L.  R.  13  Q.  B.  D.  [259  (1884)]).  whether  it  was  one  which  existed 
when  he  was  employed  or  whether  it  had  arisen  or  come  within  his  means  of 
observation  thereafter.  Priestley  v.  Fowler,  ante,  p.  350;  SkifJ^  v.  Ry., 
ante,  p.  449;  and  since  the  act  it  has  been  held  in  JVilliaiiis  v.  Birmingham 
Metal  Co.,  L.  R.  1899,  2  Q.  B.  338,  that  it  rests  on  the  master  to  prove  that 
the  servant  appreciated  and  voluntarily  assumed  the  risk  of  a  defect  existing 
when  he  entered  the  master's  service,  a  question  which,  save  in  very  excep- 
tional circumstances,  must,  under  the  English  practice,  be  a  question  for 
the  jury,  Dublin,  etc.,  Ry.  Co.  v.  Slattery,  L.  R.  3  A.  C.  11 55  (1878). 

At  one  time  there  appeared  to  be  a  distinct  tendency  in  the  Massa- 
chusetts and  New  York  decisions  to  recognize  a  vital  distinction  between  the 
servant's  knowledge  of  dangers  existing  when  he  was  employed  and^  his 
knowledge  of  those  arising  thereafter,  Sweeny  v.  Envelope  Co.,  loi  N.  Y. 
520  (1886);  O'Maley  v.  South  Boston  Gas  Co.,  158  Mass.  135  (1893),  in 
which  the  Court,  Knowlton,  J.,  holds  that  a  servant  accepts  the  risks  of 
dangers  of  risks  existing  when  he  enters  the  defendant's  employment  as 
fully  under  the  Employers'^Liability  Act  as  at  common  law,  but  expressly 
states,  p.  138,  that  it  is  manifest  that  the  reasons  which  lead  them  to  so  decide 
can  not'  apply  to  conditions  which  come  into  existence  after  the  makmg  of 
the  contract;  but  see  Lamson  v.  Am.  Ice  Co.,  177  Mass.  144  (1900)  when  a 
servant,  suing  under  the  act,  was  held  to  have  assumed  the  risk  of  changed 
conditions  by  continuing  to  work  after  learning  of  the  change. 

In  Davis  v.  Forbes,  171  Mass.  548  (1898),  Knowlton,  J.,  diss.,  p.  553.  dis- 
cusses this  distinction  at  length— and  holds  that  "the  employer  owes  the 
employee  no  dutv  and  can  not  be  held  guilty  of  negligence  m  regard  to 
defects  openly  existing  in  his  plant  when  the  contract  of  service  is  entered 
into  whether  the  servant  actuallv  knows  of  their  existence  or  not;  this  he 
calls  contractual  assumption  of  risks— but  as  to  defects  arising  subsequently, 
the  master  must  show  that  the  servant  knew  the  condition  and  appreciated 
the  risk,  in  his  opinion  generallv  a  question  of  fact  for  the  jury.  Here  his 
continuance  in  the  emplovment  after  he  appreciates  the  added  hazard  operates 
as  a  defense  based  on  the  maxim  volenti  non  fit  wjuna.^^  See.  for  "i  very 
similar  view  more  elaborately  set  out.  "Smith  v.  Baker  8  L.  g.  Kev.  202 
Esp,  pp.  207  to  211,  by  Thomas  Beven.  Esq.,  and  see  also  the  same  learned 
author's  statement  of  the  effect  of  this  view  upon  the  burden  of  proot. 
"Negligence  in  Law,"  3rd  Ed.,  p.  641. 

"He  then  cites  Washington,  etc..  R.  R.  v.  McDade,  135  U  S  554 :  -^'^i"- 
hauser  v.  Spraul,  127  Mo.  S4i  :  Roberts  v.  Missouri,  etc  Tel.  Co..  166  Mo 
370;  Campbell  v.  Dearborn,  I75  Mass.  183;  Johnson  v.  Devoe  Snuff  Co.,  52 
N.  J.  L.  47;  Ford  v.  Mount  Tom  Co.,  172  Mass.  544;  Brossman  v.  R.  R., 
X13  Pa.  490. 


114  APPENDIX. 

an  ordinarily  prudent  person  of  his  capacity  and  intelligence  would 
have  known  and  appreciated  in  his  situation. 

A  servant  who  knows,  or  who  by  the  exercise  of  reasonable 
prudence  and  care  would  have  known,  of  the  risks  and  dangers 
which  arose  during  his  service,  but  who  continues  in  the  employ- 
ment without  complaint,  assumes  those  risks  and  dangers  to  the 
same  extent  that  he  undertakes  to  assume  those  existing  when  he 
enters  upon  the  employment. 

Among  the  risks  and  dangers  thus  assumed  are  those  which 
arise  from  the  failure  of  the  master  to  completely  discharge  his 
duty  to  exercise  ordinary  care  to  furnish  the  servant  with  a  reason- 
ably safe  place  to  work  and  reasonably  safe  appliances  and  tools 
to  use. 

Assumption  of  risk  and  contributory  negligence  are  separate 
and  distinct  defenses.  The  one  is  based  on  contract,  the  other  on 
tort.  The  former  is  not  conditioned  or  limited  by  the  existence  of 
the  latter,  and  is  alike  available  whether  the  risk  assumed  is  great 
or  small,  and  whether  the  danger  from  it  is  imminent  and  certain 
or  remote  and  improbable. 

The  court  below  fell  into  an  error  when  it  instructed  the  jury 
that  although  the  plaintiff  continued  in  the  employment  of  the 
defendant  by  the  side  of  the  visible  unguarded  gearing  with  full 
knowledge  that  the  cogs  which  injured  her  were  uncovered,  still  she 
could  not  be  held  to  have  assumed  the  risk  of  working  by  their  side 
unless  the  danger  from  them  was  so  imminent  that  persons  of 
ordinary  prudence  would  have  declined  to  incur  it  under  similar 
circumstances.     Choctaiv,  Oklahoma  &  Gulf  R.  R.  v.  McDade,  191 

U.  S.  64  (1903)-  .r    .       .         ,•    • 

There  is  another  alleged  error  specified.  A  prehminary  ques- 
tion for  the  judge  always  arises  at  the  close  of  the  evidence  before 
a  case  can  be  submitted  to  the  jury.  That  question  is,  not  whether 
or  not  there  is  any  evidence,  but  whether  or  not  there  is  any  sub- 
stantial evidence  upon  which  a  jury  can  properly  render  a  verdict 
in  favor  of  the  party  who  produces  it. 

The  factory  act  of  Missouri  (2  Rev.  St.  1899,  §  6433)  does 
not  abolish  the  defense  of  assumption  of  risk  in  cases  which  fall 
under  its  provisions.  In  this  respect  it  differs  from  the  act  of  the 
Congress  of  the  United  States  (Act  March  2,  1893,  c.  196,  27  Stat. 
531  [U.  S.  Comp.  St.  1901,  p.  3174]),  which  requires  cars  engaged 
in  interstate  commerce  to  be  equipped  with  automatic  couplers. 
Congress  in  that  act  expressly  provided  that  in  case  the  railroad 
companies  failed  to  comply  with  its  terms  the  employes  should  not 
be  deemed  to  have  assumed  the  risk  thereby  occasioned.  Act 
March  2,  1893,  c.  196,  §  8,  p.  532,  27  Stat.  352  [U.  S.  Comp.  St. 
T90T,  p.  3176].  The  Legislature  of  Missouri  had  power  to  apply 
a  similar  provision  to  cases  in  which  employers  failed  to  keep  their 
rmchinery  safely  and  securely  guarded,  but  they  did  not  do  so. 
The  negligence  of  the  master  to  safely  and  securely  guard  his 
machinery  in  accordance  with  the  provisions  of  the  law  of  Missouri 
is  of  the  same  nature  as  his  negligence  in  providing  a  reasonably 
safe  floor  or  axe  or  other  tool  or  appliance,  and  there  is  no  reason 


ST.   LOUIS  CORDAGE  CO.  Z'.    MILLI'-R.  Il5 

why  an  action  for  a  resulting  injury  should  not  be  subject  to  the  de- 
fense of  assumption  of  risk  in  the  one  case  to  the  same  extent  as  in 
the  other. 

The  question  here,  therefore,  is:  Was  there  any  substantial 
evidence  at  the  close  of  the  trial  below  which  would  have  war- 
ranted a  finding  and  verdict  by  the  jury  that  the  plaintiflf  did  not 
voluntarily  assume  the  risk  of  the  uncovered  gearing?  Of  course, 
the  question  whether  or  not  a  servant  has  willingly  assumed  a  risk 
of  the  service  is,  like  all  questions  of  fact,  for  the  jury  when  the 
evidence  is  conflicting  or  when  the  deductions  from  it  are  doubtful, 
and,  as  this  is  usually  the  case  in  the  trial  of  this  issue,  as  in  the 
trial  of  all  other  issues  of  fact,  the  general  rule  becomes  that  this 
question  is  ordinarily  for  the  jury. 

There  are  many  cases  in  which  the  danger  from  the  condition 
of  the  place  or  of  the  appliances  is  uncertain  or  recondite,  as  in 
Ford  v.  Fitchhurg  R.  Co.,  no  Mass.  240-243,  261,  where  an  explo- 
sion which  could  not  have  been  reasonably  anticipated  resulted 
from  a  defect  in  a  boiler  which  was  known  to  the  servant,  and  from 
such  cases  the  rule  arises  that  mere  knowledge  of  the  defect  in  the 
place  or  in  the  appliances  does  not  necessarily  establish  the  fact  as 
a  matter  of  law  that  the  employe  assumed  the  risk  which  the  defect 
entailed. 

There  are  other  cases,  like  Coombs  v.  Nczv  Bedford  Cordage 
Co.,  102  Mass.  572,  in  which  a  boy  less  than  14  years  old  and  un- 
acquainted with  machinery  was  on  the  second  day  of  his  employment 
set  to  work  in  a  noisy  factory  to  break  off  ribbon,  where  he  was 
required  to  draw  his  hands  apart  so  that  one  of  them  would  fre- 
quently come  near  an  uncovered  gearing,  to  which  the  rule  applies 
that  a  servant  does  not  assume  the  risk  of  a  known  defect  unless 
he  appreciates,  or  unless  a  person  of  his  intelligence  and  capacity 
by  the  exercise  of  ordinary  prudence  would  have  appreciated,  the 
danger  arising  from  it.'^ 

Now,  while  it  is  true,  as  the  decisions  to  which  we  have  adverted 
declare,  that  mere  knowledge  of  a  defect  by  a  servant  who  continues 
in  the  employment  does  not  necessarily  establish  the  fact  as  a  matter 
of  law  that  he  has  assumed  the  risk  it  entails,  and  while  it  is  also 
true  that  he  does  not  assume  such  a  risk  unless  an  ordinarily  prudent 
person  of  his  capacity  in  his  situation  would  liave  ajipreciated  the 
danger  from  it,  it  is  equally  true  that  a  servant  who  enters  or  con- 
tinues in  the  employment  of  his  master  in  the  presence  of  visible 
or  obvious  defects  and  plain  or  apparent  dangers  from  them,  which 
he  knows  or  appreciates,  or  which  an  employe  of  his  intelligence 
and  capacity  would  by  the  exercise  of  ordinary  care  and  prudence 
know  and  appreciate,  assumes  the  risk  of  these  dangers,  and  he 
cannot  be  heard  to  say  that  he  did  not  appreciate  them,  and  when 
the  uncontradicted  evidence  establishes  these  facts  no  case  arises 
in  his  favor,  no  question  remains  for  the  jury,  and  it  is  the  duty 


'The  extended  discussion  of  a  number  of  cases  cited  by  the  Appellee, 
of  which  the  most  important  and  interesting  is  Kane  v.  R.  R.,  128  U.  S.  01.  is 
omitted. 


TiT)  ArPExnix. 

of   the   court   to   peremptorily    instruct    them    to    return    a    verdict 
for  the  master.® 

The  record  in  the  case  at  bar  has  been  searched  in  vain  for 
any  fact  or  testimony  adecjuate  to  withdraw  it  from  the  principles 
of  law  established  by  this  strong  current  of  decision,  or  to  distinguish 
it  from  the  cases  which  have  been  cited  to  illustrate  the  rule.  This 
plaintiff  was  a  young  woman  20  years  of  age.  The  presumption 
is  that  she  was  possessed  of  ordinary  intelligence  and  abihty.  She 
had  been  at  work  in  factories  for  more  than  a  year,  and  in  the 
establishment  of  the  defendant  for  more  than  six  months.  She 
knew  that  the  gearing  which  injured  her  had  been  covered  before 
Christmas,  and  that  it  was  uncovered  from  that  time  until  she  was 
injured  on  February  13,  1902.  She  had  worked  at  this  machine 
by  the  side  of  the  exposed  mashing  cogs  from  10  to  15  minutes 
every  day  during  the  six  weeks  that  they  remained  uncovered.  She 
testified  that  she  did  not  know  that  it  was  dangerous  to  run  the 
gearing  uncovered,  but  she  knew  the  action  of  the  lever,  the  greasy 
condition  of  its  handle,  its  proximity  to  the  mashing  cogs,  and  she 
could  no  more  have  failed  to  know  and  to  appreciate  that  the  revolv- 
ing cogs  would  crush  her  hand  if  she  permitted  it  to  slip  between 
them  than  she  could  have  failed  to  appreciate  that  boiling  water 
would  scald  or  fire  would  burn.  One  cannot  be  heard  to  say  that 
he  does  not  know  or  appreciate  a  danger  whose  knowledge  and 
appreciation  are  so  unavoidable  to  a  person  of  ordinary  intelligence 
and  prudence  in  a  like  situation.^ 

The  machinery,  the  cogs,  the  slippery  lever,  and  their  relation 
to  each  other,  were  open,  visible,  known.  There  was  nothing 
recondite,  imperceptible,  uncertain,  in  the  danger  impending  from 
them.  It  was  plain  and  certain  that  if  the  employe  permitted  her 
hand  to  slip  between  the  revolving  cogs  that  hand  would  be  injured. 
The  defect  of  the  unguarded  gearing  was  obvious,  the  danger  from 
it  was  apparent,  and,  without  a  disregard  of  the  rules  to  which  we 
have  adverted  and  the  decisions  of  the  Supreme  Court  and  of  the 
other  courts  of  the  country  to  which  reference  has  been  made,  there 
is  no  escape  from  the  conclusion  that  the  evidence  in  this  case  estab- 
lished without  contradiction  or  dispute  the  facts  that  the  plaintiff, 
by  continuing  in  her  employment  without  complaint,  in  the  presence 
of  an  obvious  and  known  defect  and  of  a  plain  and  apparent  danger, 
assumed  the  risk  of  the  injury  which  she  sustained,  so  that  she 
never  had  any  cause  of  action  against  the  defendant ;  and  the  court 
below  should  have  so  instructed  the  jury.  The  judgment  below  is 
accordingly  reversed,  and  the  case  is  remanded  to  the  Circuit  Court 
for  a  new  trial. 

Th.^yer,  Circuit  Judge   (dissenting).     I  do  not  concur  m  the 

•The  Court  then  cites  in  support  of  his  position  the  following  cases: 
Higgins  Carpet  Co.  v.  O'Keefe,  79  Fed.  900;  Buckley  v-Mfd-  Co.,  113  N.  Y. 
>;40;  Engine  Works  v.  Randall.  100  Ind.  293;  Berger  v.  Ry.  Co.,  29  Minn.  7»; 
Kleinest  v.  Kunhardt,  160  Mass.  230:  Tuttle  v.  R.  R.,  122  U.  S.  189,  and  many 
others.  rr     .• 

'Citing  King  v.  Morgan,  109,  Fed.  446;  Moon  Anchor  Co.  v.  Hopkins, 
HI  Fed.  298;  Buckley  v.  Co.,  113  N.  Y.  540. 


ST.  LOUIS  CORDAGIi  CO.   V.    MILLER.  117 

foregoing  opinion.  The  laws  of  Missouri  (Rev.  St.  1899,  § 
6433)  required  the  defendant  company  to  keep  the  gearing  which 
occasioned  the  plaintiff's  injury  "safely  and  securely  guarded  when 
possible,"  for  the  protection  of  its  employes.  This  statute  was 
enacted  in  pursuance  of  a  sound  public  policy;  that  is  to  say,  to 
insure,  as  far  as  possible,  the  safety  of  the  many  thousand  artisans 
and  laborers  who  are  daily  employed  in  mills  and  factories  through- 
out the  State,  and  while  so  employed  are  exposed  to  unnecessary 
risks  of  getting  hurt  if  belting,  gearing,  drums,  etc.,  in  the  establish- 
ments where  they  work  are  left  uncovered  when  so  situated  that 
they  may  be  covered  readily.  The  act  was  inspired  by  the  same 
motives  which  induced  the  Congress  of  the  United  States  ( Act 
March  2,  1893,  c.  196,  27  Stat.  531  [U.  S.  Comp.  St.  1901.  p.  3174] ) 
to  require  cars  to  be  equipped  with  automatic  coupling  appliances 
when  it  was  discovered  that  hundreds  of  brakemen  were  annually 
killed  or  made  cripples  for  life  by  the  use  of  the  old-fashioned 
couplers  that  do  not  couple  by  impact.  A  wise  publii;  policy  de- 
mands that  as  far  as  possible  human  life  shall  be  preserved,  and 
that  there  shall  not  be  in  any  community  a  large  class  of  persons 
who  are  unable  to  earn  a  livelihood  because  they  have  become 
maimed  and  crippled  through  exposure  to  unnecessary  risks.  The 
statute  in  question  is  not  only  a  wise  measure  of  legislation.^  but 
was  prompted  by  a  humane  spirit.  For  these  reasons  it  should  not 
be  so  applied  or  construed  by  the  courts  as  to  defeat  the  objects 
which  the  Legislature  had  in  view,  nor  in  such  a  way  as  to  render 
it  less  efficient  than  it  was  intended  to  be  in  the  promotion  of  such 
objects. 

It  is  conceded  that  the  defendant  company  neglected  to  per- 
form its  statutory  duty;  it  left  the  gearing,  which  inflicted  the  mjury, 
uncovered  for  several  weeks,  although  it  could  have  been  covered 
easily  and  was  covered,  when  the  plaintiff  below  entered  its  service ; 
and  as  the  result  of  such  neglect  the  plaintiff  below,  a  girl  of  20,  who 
had  scarcely  reached  years  of  discretion,  sustained  a  severe  and 
painful  ihjury.  The  majority  of  the  judges  of  this  court  hold  that 
she  cannot  recover  because,  by  working  at  the  machine  for  10  or 
15  minutes  each  day  for  about  six  weeks  after  the  covering  of  the 
gearing  had  been  removed,  she  consciously  entered  into  a  contract 
with  the  defendant  company,  although  her  wages  were  not  increased, 
that  she  would  assume  the  risk  of  getting  hurt  by  the  uncovered 
gearing,  which  she  did  not  assume  when  she  entered  its  service, 
and  that  she  would  absolve  it  from  all  liability.  They  hold,  further, 
that  although  the  plaintiff  may  not  in  fact  have  appreciated  or 
foreseen  the  risk  and  danger  which  she  incurred  by  working  at  the 
machine  with  the  gearing  uncovered,  yet.  because  in  their  opinion 
a  person  of  her  age  and  intelligence  ought  to  have  api)rcciated  it, 
they  will  infer  that,  with  a  full  appreciation  of  the  risk,  she  volun- 
tarily entered  into  a  contract  with  her  master  to  assume  it.  By  this 
ruling  they  impose  on  the  servant  the  duty  of  being  astute  to  ascer- 
tain nsks  and  dangers  incident  to  defects  in  tools  and  appliances 
which  the  master  has  provided,  and  in  effect  absolve  the  master  in  a 
great  measure  from  his  obligation,  when  providing  tools  and  appli- 


Il8  APPENDIX. 

ances,  to  exercise  care  and  foresight  for  the  protection  of  his  ser- 
vants, this  being  a  duty  which  from  time  immemorial  the  law  has 
devolved  on  the  master.  Texas  &  P.  Ry.  Co.  v.  Archibald,  170  U. 
iS.  665,  671,  672.  Moreover,  being  of  the  opinion,  apparently,  that 
it  would  be  quite  unsafe  to  leave  a  jury  of  ordinary  persons  (who 
are  familiar  with  the  manner  in  which  persons  like  the  plaintiff, 
and  in  her  situation,  ordinarily  think  and  act)  to  determine  under 
the  facts  of  this  case  whether  the  plaintiff  did  for  a  consideration 
voluntarily  enter  into  the  contract  aforesaid,  they  declare  that  the 
jury  had  no  right  to  decide  that  question,  it  being  purely  a  question 
of  law,  with  which  the  jury  had  no  concern.  And,  lastly,  they 
assert  that  when  this  plaintiff  observed  that  the  gearing  in  question 
was  uncovered  it  was  her  duty  to  have  thrown  up  her  situation  and 
quit  the  defendant's  employment,  or  to  have  secured  a  promise  from 
her  employer  to  restore  the  covering  within  a  short  period,  and  that, 
inasmuch  as  she  did  not  quit  work  or  secure  such  promise,  they, 
rather  than  a  jury,  will  infer  that  she  promised  of  her  own  free 
will  to  assume  the  risk.  I  do  not  concur  in  either  of  these  propo- 
sitions. 

I  do  not  regard  the  question  whether  "contributory  negligence" 
and  "assumption  of  risk,"  considered  as  defenses  to  an  action  for 
personal  injuries,  are  identical  or  are  different  defenses  as  of  much 
practical  importance.  That  is  rather  a  question  for  the  schoolmen. 
It  matters  very  little  whether  we  say  of  a  servant  who  has  used  a 
defective  tool  or  appliance,  which  the  master  has  supplied,  with  a 
full  knowdedge  of  the  defect  and  a  full  appreciation  of  the  danger 
incident  to  its  use,  that  such  a  servant  is  as  much  at  fault  as  the 
master  and  is  guilty  of  contributory  negligence, .  or  whether  we 
say  that  he  has  agreed  to  assume  the  risk  and  absolve  the  master 
from  liability.  The  result,  as  respects  the  master's  liability,  is  the 
same  in  whatever  way  we  may  choose  to  designate  the  defense. 

The  other  questions,  however,  that  are  discussed  in  the  opinion, 
and  are  decided  in  the  manner  above  stated,  are  of  great  moment, 
affecting,  as  they  do,  the  rights  of  thousands  of  people  who  are  daily 
engaged  in  service  and  are  liable  to  sustain  injuries  because  reason- 
able precautions  are  not  taken,  by  those  who  employ  them,  to  pre- 
vent their  being  injured.  In  view  of  the  motives  which  usually 
influence  the  conduct  of  men,  I  think  it  is  certain  that  employers 
will  be  less  careful  in  inspecting  tools  and  machinery  which  they 
provide  for  their  employes,  less  prompt  in  remedying  defects  therein 
when  they  are  discovered,  and  less  mindful  of  the  discharge  of  the 
duties  imposed  on  them  by  such  a  statute  as  the  one  involved  in  the 
case  at  bar,  and  other  police  regulations  of  that  sort  which  may  be 
made  in  the  future,  if  the  doctrine  is  established  that  by  using  an 
implement  or  machine  having  visible  defects,  although  the  risk  of 
injury  is  not  overshadowing  and  imminent,  a  servant  thereby 
assumes  the  risk  and  agrees  to  hold  the  master  blameless  if  he  is 
hurt.  The  other  doctrine,  that  the  servant  cannot  rely  upon  the 
master  to  discharge  the  duty  which  the  law  imposes  upon  him  to 
provide  tools,  appliances,  and  a  place  to  work  that  is  reasonably 
safe,  but  must  be  astute  to  discover  defects  therein  and  to  appre- 


J 


ST.  LOUIS  CORDAGE  CO.   Z\    MILLER.  I IQ 

ciate  dangers  incident  thereto,  and  that  he  must  either  quit  work 
or  secure  the  master's  promise  to  supply  better  tools  and  safer  appli- 
ances, or  else  be  denied  compensation  for  any  injury  which  he  may 
sustain,  is  also  a  doctrine  that  is  eminently  well  calculated  to  make 
employers  less  vigilant  in  the  discharge  of  their  duties  to  their  em- 
ployes, and  less  ready  to  obey  the  provisions  of  such  laws  as  may 
be  enacted  to  prevent  the  occurrence  of  distressing  accidents.  It  is 
reasonably  certain  that  employers  will  not  be  as  willing  and  prompt 
to  incur  the  expense  of  furnishing  new  and  safer  tools,  and  of 
providing  additional  safeguards  against  dangerous  machinery,  when 
they  are  advised  that  they  can  lay  before  their  employes  the  alterna- 
tive of  throwing  up  their  jobs  or  continuing  to  work  with  tools  and 
machinery  as  they  are,  at  their  own  risk,  and  can  compel  them  to 
take  their  choice.  In  very  many  instances,  no  doubt,  such  expendi- 
tures as  might  be  made  and  ought  to  be  made  to  afford  greater  pro- 
tection to  persons  engaged  in  service  will  be  deferred  to  a  rnore 
convenient  season,  and  in  the  meantime  injuries  will  be  sustained 
that  might  have  been  avoided.  When  forced  to  the  alternative  of  los- 
ing his  situation  or  working  with  defective  tools  or  in  a  situation  that 
might  be  made  safer,  many  an  employe  will  choose  the  latter.  Besides, 
many  servants,  especially  those  who  are  most  worthy,  will  hesitate  to 
make  a  demand  for  better  and  safer  implements  when  they  ought  to 
be  supplied,  or  to  have  the  place  where  they  work  made  safer,  for 
fear  of  falling  into  disfavor  with  their  employers  and  being  classed 
as  malcontents  and  grumblers.  Another  large  class  of  persons  who 
are  young  and  venturesome,  or  by  disposition  and  temperament  are 
not  prone  to  anticipate  injuries  or  to  appreciate  dangers  to  which 
they  are  exposed,  will  continue  to  work^  with  tools  or  appliances 
when  they  have  become  unsafe,  utterly  'unconscious  of  the  risks 
which  they  incur.  TakeHhe  case  at  bar  as  an  example.  It  is  by 
no  means  improbable  that  the  plaintiff,  although  she  worked  lo 
or  15  minutes  each  day  at  the  forming  machine  with  the  gearing 
uncovered,  for  several  weeks  before  she  was  hurt,  had  never 
thought  of  such  an  accident  as  eventually  befell  her,  and  had  never 
had  a  realizing  sense  or  a  conscious  appreciation  of  the  danger  which 
my  associates  say,  with  so  much  confidence,  she  must  have  had,  and 
accordingly  decline  to  permit  a  jury  to  pass  upon  the  question.  And 
yet  the  Legislature  foresaw  that  such  an  accident  might  hapjien.  and 
for  the  protection  of  persons  like  the  plaintiff  enjoined  upon  the 
defendant  companv  the  duty  of  covering  these  gearings  and  keep- 
ing them  covered  so  that  such  accidents  might  not  hajipen.  In  other 
words,  the  Legislature  made  it  the  duty  of  the  defendant  company 
to  protect  the  plaintiff  from  the  risk  to  which  they  caused  her  to  be 

exposed.  .  •  ,      r  •  1 

On  grounds  of  public  policy,  therefore,  and  to  msure  the  faith- 
ful discharge  bv  emplovers  of  the  duty  which  the  law  devolves  on 
them  and  to  prevent  tliem  from  forcing  their  employes  to  assume 
risks  which  they  of  right  ought  to  assume,  the  law  ought  to  be  as 
it  was  declared  by  the  learned  trial  judge,  that  the  plaintiff  was  not 
debarred  from  recovering  compensation  for  the  injuries  which  she 
sustained,  merely  by  reason  of  the  fact  that  she  had  worked  at  the 


I20  APrp.XDIX. 

forming  machine  at  intervals  with  the  gearing  uncovered,  unless 
the  jury  believed  that  the  risk  of  getting  hurt  was  so  grave  and 
imminent  that  a  person  of  ordinary  prudence  would  not  have  in- 
curred it.  The  principle  so  enunciated  being  just,  both  as  it  affects 
masters  and  servants,  in  that  it  places  the  responsibility  for  defective 
tools  and  appliances  where  it  of  right  belongs,  and  the  rule  announced 
being  easy  of  application  and  one  that  will  tend  to  the  protection  of 
life  and  limb,  there  is,  in  my  judgment,  abundant  authority  to 
sustain  it.^° 

I  am  also  of  opinion  that  even  on  the  theory  on  which  the 
majority  decision  proceeds,  namely,  that  where  by  the  negligence 
of  the  master  his  servant  has  been  exposed  to  a  risk  of  injury  that 
was  neither  great  nor  imminent,  he  may,  by  continuing  at  work 
with  knowledge  of  the  danger,  be  held  to  have  consented  or  agreed 
to  assume  it,  the  decision  of  my  associates  is  erroneous  in  holding 
as  a  matter  of  law,  on  the  facts  and  circumstances  of  the  case,  that 
the  plaintiff  did  voluntarily  agree  to  assume  the  risk  to  which  she 
was  exposed  by  the  admitted  fault  of  the  master,  and  in  with- 
drawing that  issue  from  the  jury.  When  the  decision  in  Thomas  v. 
Quarterniaiiic,  supra,  was  first  announced,  it  was  assumed  by  many 
that  as  the  result  of  that  decision,  when  an  employer  succeeded, 
in  a  personal  injury  case,  in  showing  that  his  servant,  before  being 
hurt,  had  used  the  defective  tool  or  appliance  which  occasioned  the 
injury,  with  knowledge  of  the  defect,  or  had  shown  that  he  had 
worked  in  an  unsafe  place  with  knowledge  of  its  insecurity  and 
had  on  that  account  sustained  injury,  he  was  immediately  absolved 
from  all  liability  for  his  neglect,  and  that  the  courts  must  perforce 
declare,  as  a  matter  of  law,  that  the  servant  had  agreed  to  assume 
the  risk.  It  was  very  soon  discovered,  however,  by  the  English 
judges,  that  this  doctrine  was  exceedingly  unjvist  to  employes,  and 
that  it  would  enable  employers  to  shift  the  responsibility  for  pro- 
viding unsafe  tools  and  appliances  upon  their  servants.^^ 

The  same  view  of  the  question  under  discussion  has  been 
taken  in  this  country.  For  example,  in  Fitzgerald  v.  Connecticut 
River  Paper  Co.,  155  Mass.  155,  29  N.  E.  464.  31  Am.  St.  Rep.  537, 
it  appeared  that  an  employe  in  a  mill,  who  had  worked  there  for  13 
years  and  was  familiar  with  all  of  the  surroundings,  in  attempting 
to  go  down  some  steps  which  were  covered  with  ice,  fell  and  was 
seriously  injured.  The  ice  upon  the  steps  was  caused  by  exhaust 
steam  from  an  engine  which  was  run  by  the  defendant  company, 
which  fell  upon  the  steps  and  froze,  and  the  plaintiff  knew  the  steps 
to  be  icy  and  more  or  less  slippery  in  the  winter  season,  and  that 
at  the  time  she  was  hurt  she  was  going  down  the  steps  with  a  dinner 
pail  in  one  hand  and  holding  onto  the  railing  with  the  other.     It  was 


"In  support  of  his  position  he  cites  A''.  Pac.  R.  R.  v.  Mares,  123  U.  S. 
710;  Kane  v.  R.  R.,  128  U.  S.  91  :  So.  Pac.  R.  R.  v.  Yeargin,  109  Fed.  436; 
Patterson  v.  R.  R.,  76  Pa.  389:  Ford  v.  Fitcliburg,  no  Mass.  240:  Lee  v. 
Smart,  45  Neb.  318;  Parker  v.  R.  R.,  48  S.  Car.  364. 

"An  extended   discussion   of    Yarmouth   v.   France,  Smith   v.   Baker, 
omitted. 


A 


ST.   LOUIS   CORDAGi:   CO.   V.    MILLKR.  121 

held  by  the  Supreme  JiuHcal  Court  of  Massachusetts,  in  an  elaborate 
decision  that  the  question  whether  the  plaintiff  had  assumed  the  risk 
in  question  was  a  question  of  fact  for  the  jury,  and  that  it  could 
not  be  said,  as  a  matter  of  law,  that  she  appreciated  the  risk  and 
agreed  to  assume  it.  Also  in  the  case  of  Mahoncy  v.  Dorc,  155 
Mass.  513,  30  N.  E.  366,  it  appeared  that  the  plaintiff,  a  servant  girl, 
had  fallen  down  a  flight  of  steps  in  consequence  of  sleet  and  ice 
which  had  formed  thereon  because  the  defendant  had  suffered  a 
skylight  over  the  steps  to  become  broken,  thus  permitting  the  sleet  to 
form  on  the  steps.  It  further  appeared  that  the  plaintiff  had  gone 
down  the  steps  once  before,  that  evening,  and  knew  that  they  were 
slippery,  and  that  when  she  fell  she  had  hold  of  the  railing  and  was 
trying  to  go  down  safely.  The  court  held  on  this  state  of  facts  that 
the  question  whether  the  plaintiff'  had  assumed  the  risk  of  injury 
by  going  down  the  steps,  in  their  known  icy  condition,  was  properly 
submitted  to  the  jury.'- 

I  do  not  deny  that  there  are  cases  where  some  courts  have  held 
that  the  risk  encountered  by  a  servant  in  using  a  defective  imple- 
ment or  appliance  was  so  obvious  that  he  must  have  appreciated  it 
fully,  and  for  that  reason  have  declared  that  he  assumed  it ;  but  I 
maintain  that  in  case  of  a  clear  omission  of  duty  by  an  em])loyer 
which  has  occasioned  an  injury,  where  an  inference  is  to  be  drawn 
from  facts  and  circumstances  that  a  servant  appreciated  the  risk 
incident  thereto  and  voluntarily  agreed  to  assume  it,  the  inference 
is  essentially  one  of  fact  and  should  be  drawn  by  a  jury,  who  are 
usually  as  well  acquainted  as  judges  with  the  motives  which  prompt 
human  action,  and  who,  in  such  cases  as  the  one  supposed,  are  cjuite 
as  likely  to  form  a  correct  conclusion.  I  have  already  remarked, 
and  I  repeat  the  thought,  that  it  is  not  at  all  improbable  that  the 
plaintiff  in  this  case  had^never  considered  the  fact  that  her  hand 
might  slip  between  these  uncovered  cogs  and  be  crushed.  I  have 
little  doubt  that  a  jury  of  reasonable  men  would  have  found  without 
hesitation  that  she  had  never  foreseen  that  such  an  accident  might 


'■  In  both  these  cases  the  dangerous  condition  was  temporary  and  constantly 
varying.  It  was  due  to  the  normal  operation  of  natural  forces  prevalent 
in  that  climate  during  the  winter  months,  and  while  not  permanent  was 
one  which,  in  view  of  the  exposed  position  of  the  stairway  in  Fitzgerald's 
case  and  of  the  bad  repair  of  the  covering  of  that  in  Mahoucy  v.  Dorc.  was 
practically  certain  to  constantly  occur.  In  each  case  the  court  only  con- 
sidered the  plaintiff's  appreciation  of  the  full  extent  of  the  risk  at  the  par- 
ticular time  when  the  particular  attempt  to  use  the  stairs  was  made  which 
resulted  in  the  injury.  As  to  whether  a  servant  by  continuing  to  serve  under 
conditions  which  to  her  knowledge  have  led  to  the  creation  of  dangerous 
conditions  during  every  storm  assumes  the  risk  of  the  certain  recurrence 
thereof  in  future  similar  weather,  see  20  Harv.  L.  R.,  107,  and  cf.  Rase  v. 
R.  R.,  107  Minn.  260.  Tn  the  recent  case  of  Urquhcirt  v.  Smith  and  Air 
tiwnv  Co.,  192  Mass.  257  (1906),  where  a  servant  was  injured  while  trying 
to  use  an  exposed  boardwalk  on  his  master's  premises,  upon  which  snow 
had  been  allowed  to  accumulate,  these  two  cases,  as  well  as  the  one  in 
hand,  were  treated  as  identical  in  principle  to  those  where  a  traveller 
is  injured  in  an  attempt  to  use  a  public  way  (see  Pomcroy  v.  U'estficld, 
ante  p.  161)  in  which  the  defendant  is  liable  unless  the  plaintif?  is  guilty  of 
contributory   negligence   in   making   the   attempt. 


appi:ndix. 


happen,  and  hence  did  not  in  fact  appreciate  the  risk.  She  was 
comparatively  young,  and  at  an  age  when  persons  like  her,  in  the 
course  of  their  daily  work,  are  not  given  to  thoughts  of  lurking 
dangers.  It  is  certain,  I  think,  that  she  never  thought  of  agreeing 
with  her  employer  to  assume  the  lurking  danger  to  which  she  was 
in  fact  exposed,  and  to  absolve  her  employer  from  all  blame.  The 
Legislature,  however,  appreciated  the  danger  which  she  and  thou- 
sands of  others  like  her  might  unwittingly  incur,  and  how  they 
would  naturally  act — permitting  their  employers  to  make  such  pro- 
vision for  their  safety  as  they  saw  fit,  neither  making  any  complaints 
on  that  account,  nor  quitting  their  employment.  It  accordingly 
said  to  employers,  "You  must  cover  machinery  which  may  occasion 
injury  when  you  can  do  so  easily,  and  thus  protect  your  servants 
from  unnecessary  risks."  If  such  a  duty  can  be  evaded  by  voluntary 
agreements  made  by  employers  with  their  employes,  and  by  impli- 
cation only,  then  the  existence  of  such  agreements,  when  alleged, 
should  be  found  by  a  jury.  In  no  other  way,  in  my  judgment,  will 
such  statutes  prove  effective  for  the  protection  of  human  life. 

This  opinion  has  already  been  extended  to  unusual  length.  It 
is  of  greater  length  than  a  dissenting  opinion  in  a  personal  injury 
case,  or  a  majority  opinion  for  that  matter,  ought  to  be.  But  the 
questions  involved  are  important  and  will  affect  the  rights  of  very 
many  litigants,  and  on  that  account  I  desire  to  place  on  record  a 
plain  statement  of  the  reasons  why  I  dissent  from  doctrines  which 
seem  to  me  to  have  been  formulated  with  an  eye  mainly  to  the  pro- 
tection of  employers  and  with  too  little  regard  for  the  situation  and 
rights  of  employes. 


CHOCTAW,  OKLAHOMA  AND  GULF  R.  R.  CO.  v.  McDADE. 

Supreme  Court  of  the  United  States,  1903,  191    U.  S.  64. 

The  evidence  tended  to  show  that  McDade,  the  plaintiff's  dece- 
dent, while  engaged  upon  the  defendant's  train  as  brakeman,  was 
struck  by  a  spout  hung  at  an  angle  from  a  water  tank,  hurled  from 
the  car  and  killed.^ 

Day,  J. : 

The  testimony  makes  it  clear  that  in  the  proper  construction  of 
this  appliance  there  is  no  necessity  of  bringing  it  so  near  to  the  car 
as  to  endanger  brakemen  working  thereon.  Whether  hung  at  an 
angle  or  not,  it  can  be  so  constructed  as  to  leave  such  space  between 
it  and  the  top  of  the  car  as  to  make  it  entirely  safe  for  brakemen 
in  passing.  The  testimony  makes  it  equally  clear  that  when  on  the 
furniture  car,  McDade,  sitting  at  his  post,  would  be  likely  to  be 
struck  by  the  spout  in  passing.  It  is  undoubtedly  true  that  many 
duties  required  of  employes  in  the  transaction  of  business  to  be 
carried  on  by  a  railroad  company  are  necessarily  attended  with 
danger,  and  can  only  be  prosecuted  by  means  which  are  hazardous 
and  dangerous  to  those  who  see  fit  to  enter  into  such  employment. 


*The  facts  are  greatly  condensed  from  those  given  in  the  opinion. 


CHOCTAW,  OKLAHOMA  &  GULF  K.   R.  CO.  V.   M  DAOZ.  1 23 

Where  no  necessity  exists,  as  in  the  present  case,  for  the  use  of 
dangerous  appHances,  and  where  it  is  a  matter  requiring  only  due 
skill  and  care  to  make  the  apphances  safe,  there  is  no  reason  why 
an  employe  should  be  subjected  to  dangers  wholly  unnecessary  to 
the  proper  operation  of  the  business  of  the  employer.  Kcllcher, 
Admr.,  v.  Milwaukee  &  Northern  R.  R.  Co.,  80  Wisconsin,  584; 
Georgia  &  Pacific  Raihvay  Co.  v.  Davis,  92  Alabama,  300. 

The  spout  might  readily  have  been  so  constructed  and  hung  as 
to  be  safe.  As  it  was  maintained  it  was  a  constant  menace  to  the 
lives  and  limbs  of  employes  whose  duties  required  them,  by  night  and 
day,  to  pass  the  structure.  It  is  a  case  where  the  dangerous  struc- 
ture is  not  justified  by  the  necessity  of  the  situation,  and  we  agree 
with  the  judgments  in  the  courts  below  that  its  maintenance  under 
the  circumstances  was  negligence  upon  the  part  of  the  railroad  com- 
pany. The  court,  having  left  to  the  jury  to  find  the  fact  as  to  whether 
McDade  was  killed  by  the  obstruction,  did  not  err  in  giving  instruc- 
tion that  the  negligent  manner  in  which  the  waterspout  was  main- 
tained was,  of  itself,  a  conviction  of  negligence. 

The  court  left  to  the  jury  the  question  of  the  assumption  of 
risk  upon  the  part  of  McDade  with  instructions  which  did  not  permit 
of  recovery  if  he  either  knew  of  the  danger  of  collision  with  the 
waterspout,  or,  by  the  observance  of  ordinary  care  upon  his  part, 
ought  to  have  known  of  it.  The  servant  assumes  the  risk  of  dangers 
incident  to  the  business  of  the  master,  but  not  of  the  latter's  negli- 
gence. Hough  V.  Raihvay  Co.,  100  U.  S.  213;  Wabash  R\.  Co.  v. 
McDanicls,  107  U.  S.  454 ;  A^  P.  R.  R-  Co.  v.  Herbert,  1 16  U.  S.  642 ; 
N.  P.  R.  R.  Co.  V.  Babcock,  154  U.  S.  190.  The  question  of  assump- 
tion of  risk  is  quite  apart  from  that  of  contributory  negligence.  The 
servant  has  the  right  to  assume  that  the  master  has  used  due  dili- 
gence to  provide  suitable  Appliances  in  the  operation  of  his  business, 
and  he  does  not  assume  the  risk  of  the  employer's  negligence  in  per- 
forming such  duties.  The  employe  is  not  obliged  to  pass  judgment 
upon  the  employer's  methods  of  transacting  his  business,  but  may 
assume  that  reasonable  care  will  be  used  in  furnishing  the  appliances 
necessary  for  its  operation.  This  rule  is  subject  to  the  exception 
that  where  a  defect  is  known  to  the  employe,  or  is  so  patent  as  to  be 
readily  observed  by  him,  he  cannot  continue  to  use  the  defective 
apparatus  in  the  face  of  knowledge  and  without  objection,  without 
assuming  the  hazard  incident  to  such  a  situation.  In  other  words,  if 
he  knows  of  a  defect,  or  it  is  so  plainly  observable  that  he  may  be 
presumed  to  know  of  it,  and  continues  in  the  master's  employ  with- 
out objection,  he  is  taken  to  have  made  his  election  to  continue  in 
the  employ  of  the  master,  notwithstanding  the  defect,  and  in  such 
case  cannot  recover.  The  charge  of  the  court  upon  the  assumption 
of  risk  was  more  favorable  to  the  plaintiff  in  error  than  the  law 
required,  as  it  exonerated  the  railroad  company  from  fault  if.  in 
the  exercise  of  ordinary  care,  McDade  might  have  discovered  the 
danger.  Upon  this  question  the  true  test  is  not  in  the  exercise  of 
care  to  discover  dangers,  but  whether  the  defect  is  known  or  plainly 
observable  by  the  employe.  Texas  &  Pacific  Ry.  Co.  v.  Archibald, 
170  U.  S.  665. 


124  APPENDIX. 

There  was  testimony  tending  to  show  that  McDade  had  been 
over  the  part  of  the  road  where  the  Goodwin  tank  was  situated  only 
a  few  times,  and  that  part  of  the  trips  were  made  in  the  night  season, 
and  also  that  the  furniture  cars  were  of  unusual  height  as  compared 
with  those  generally  used  in  the  transaction  of  the  business  of  the 
company.  Neither  the  assumption  of  risk  nor  the  contributory  neg- 
ligence of  the  plaintiff  below  was  so  plainly  evident  as  to  require  the 
jury  to  be  instructed  to  find  against  the  plaintiff',  but,  under  the  facts 
disclosed,  these  matters  were  properly  left  to  the  determination  of 
the  jury.- 


BURNS  V.  DELAWARE  &  ATLANTIC  TELEGRAPH  CO. 

Court  of  Errors  and  Appeals  of  Mew  Jersey,  1904,  70  A^ew  Jersey  Law  745. 

The  plaintiffs  were  laborers  in  the  defendant's  employment  and 
were  engaged  in  attending  reels  from  which  copper  wire  was  being 
unwound  while  other  employees  were  stringing  them  upon  the 
defendant's  poles. 

While  thus  engaged  he  was  injured  by  an  electric  shock  received 
from  the  wire  he  was  handling,  and  which  resulted  from  the  fact 
that  the  wire  as  it  was  reeled  out  had  either  broken  or  sagged  and 
so  come  in  contact  with  a  live  "trolley"  wire. 


-See  accord:  Jaggard,  J..  Rase  v.  R.  R.,  107  Minn.  260  (1909),  and  cases 
cited  therein,  and  see  Dettcring  v.  Lei'\,  114  !Md.  273  (1911).  In 
Illinois  Steel  Co.  v.  Mann,  100  111.  App.  367  (1902),  Waterman,  J.  says, 
p.  376:  "A  servant  must  take  notice  of  *  *  *  obvious  danger,  but 
he  is  not  bound  to  look  for  (it)  ;  while  the  master  must  ascertain 
danger  which  can  be  found  by  the  exercise  of  reasonable  diligence.  The 
master  has  a  duty  of  inspection  as  well  as  observation,  the  obligation  of  a 
servant  is  that  of  observation  alone,"  and  Lippincott,  J.,  says  in  Dillenberger  v. 
Weingartncr,  64  N.  J.  L.  202  (1899),  p.  299,  "the  obvious  risks  *  *  *  are 
the  risks  which  are  apparent  in  the  exercise  of  ordinary  observation  and 
which  are  disclosed  by  the  use  of  the  eyes  and  other  senses,"  and  see 
Combcn  v.  Belleville  Stone  Co.,  59  N.  J.  L.  226  (1896).  A  servant  has  no 
right  to  take  a  machine  apart  to  ascertain  whether  a  defect  noticed  therein 
is  so  serious  as  to  render  its  use  dangerous  while  the  master  is  bound  to  do 
so.  Lihby,  McNeill,  and  Libby  v.  Cook,  222  111.  206  (1906).  In  many  cases 
it  is,  however,  held  that  "a  servant  assumes  the  perils  incident  to  his  service 
of  which  he  is  informed  or  which  ordinary  care  would  disclose,"  Allen  v. 
R.  R.  69  N.  H.  271  (1897),  and  Maine  and  Massachusetts  cases  there  cited; 
and  in  Rooney  v.  Sewall,  etc.,  Co.,  i6r  Mass.  153  (1894),  it  is  held,  per 
Knowlton,  J.,  that  it  is  not  material  whether  a  servant  examines  the  machinery 
before  he  makes  his  contract  or  not,  if  he  choose  to  waive  examination,  he 
takes  the  risk  of  all  those  open  or  obvious  conditions  which  "could  readily 
be  ascertained  by  such  examination  and  inquiry  as  one  could  be  expected  to 
make  if  he  wished  to  know  the  nature  and  perils  of  the  service  in  which  he 
was  about  to  engage." 

See  also  Boyd  v.  Harris.  176  Pa.  484  (1896),  where  it  is  said  that  a 
servant  assumes  all  such  risks  arising  from  his  employment  "as  he  knew  or 
in  the  exercise  of  reasonable  degree  of  prudence  might  have  known"  to  be 
incident  to  his  employment,  and  in  which  it  was  held  that  the  plaintiff  as  a 
matter  of  law  h?d  assumed  the  risk  of  injuries  received  under  circumstances 
very  similar  to  tho^e  in  the  principal  case;  but  see  Bannson  v.  Lutz,  t.s8  Pa. 
166(1893)  ;  and  Williams,  J.,  in  Rummell  v.  Dilworth,  131  Pa.  509  (1889),  p. 
519.  where  it  is  held  that  a  servant  is  entitled  to  assume  that  the  master  has 
furnished  reasonably  safe  appliances. 


BURNS  V.   DEL.  &  ATLANTIC  TELEGRAPH  CO.  I25 

Pitney,  J.  (After  reciting  the  above  facts  and  holding  that 
there  was  sufficient  evidence  to  justify  the  jury  in  finding  that  the 
defendants  were  guilty  of  negligence  in  failing  to  take  precautions 
against  such  accidents  by  furnishing  their  workmen  rubber  gloves 
to  wear  and  boards  or  platforms  to  stand  upon)  :  Moreover,  the 
fact  that  the  plaintiffs  knew  that  no  gloves,  boards  or  platform  had 
been  furnished  cannot  be  held  to  excuse  the  master  from  furnishing 
them  if  required  in  the  exercise  of  reasonable  care  for  the  servant's 
safety.  The  jury  might  properly  find  from  the  evidence  that  the 
plaintiffs  had  no  knowledge  of  the  danger  that  necessitated  the  use 
of  such  precautions,  and  that  the  defendant,  on  the  other  hand,  either 
had  such  knowledge  or,  if  reasonably  careful,  would  have  possessed 
it.  It  is  not  merely  the  physical  surroundings  of  the  servant  that 
must  be  obvious  to  him  in  order  that  he  may  be  held  to  have  assumed 
the  risks  arising  therefrom,  but  it  must  be  obvious  to  him,  or,  at 
least,  to  an  ordinarily  prudent  servant,  under  the  circumstances, 
that  there  is  danger  in  such  a  situation.  It  is  his  voluntary  accept- 
ance of,  or  persistence  in,  an  employment  that  involves  personal  haz- 
ard to  him  that  debars  his  action  ;  the  theory  of  the  law  being  that  his 
wages  have  been  fixed  in  view  of  the  hazard.  But  where  the  danger 
is  unknown  to  the  servant,  he  cannot  be  held  to  have  voluntarily 
assumed  it,  although  the  physical  surroundings  that  create  the  danger 
are  known  to  him.  And  so  the  known  absence  of  safeguards  or 
precautions  cannot  prevent  a  recovery  where  the  danger  that  renders 
them  necessary  is  unknown  to  the  injured  servant.  4  Thomp.  Negl. 
(new  ed.),  §§  4608,  4610,  4640.  Thus  in  Van  Stcenburgh  v.  Thorn- 
ton, 29  Vroom,  160,  the  negligence  for  which  the  master  was  held 
liable  was  the  failure  to  brace  the  sides  of  a  sewer  trench  in  which 
the  plaintiff'  was  working.  The  plaintiff, 'of  course,  knew  that  the 
trench  was  not  braced.  *But  the  defendant's  representative  knew, 
while  the  plaintiff  did  not.  that  there  was  danger  of  caving  from  the 
existence  of  a  parallel  trench  that  had  been  filled  up.  (See  this  case 
commented  on  in  Regan  v.  Palo,  ;^;^  Vroom,  35,  and  Curlcy  v.  Hoff, 
2,2,  Id.  760.)  So  in  Smith  v.  Eric  Railroad  Co.,  38  Id.  636.  644.  it 
was  insisted  that  since  the  plaintiff  knew  there  was  a  defect  in  the 
railroad  track  he  assumed  the  risk  of  a  derailment  caused  by  such 
defect.  But  this  court  said :  "It  was  far  from  obvious  to  one  travel- 
ing upon  the  train  that  the  roughness  of  the  track  indicated  a  weak- 
ness sufficient  to  cause  derailment.  The  trial  judge  therefore  could 
not  say,  as  a  matter  of  law,  that  the  plaintiff  assumed  the  risk  of  the 
injury  that  he  received,  and  so  it  was.  at  best,  a  question  for  the  jury 
to  determine  whether  the  special  danger  was  known  to  the  plaintiff 
or  was  so  obvious  that  he  ought  to  have  known  of  it."  In  a  multi- 
tude of  other  case§  in  our  courts  the  principle  is  impliedly  recognized, 
if  not  distinctly  declared,  that  it  is  the  danger  that  must  be  known  or 
obvious  and  not  merely  the  physical  situation  in  order  to  charge  th^ 
mjured  servant  with  assumption  of  an  obvious  risk.  The  doctrine  of 
"latent  dangers"  is  largely  grounded  upon  this  distinction.  Pauhnicr 
v.  Erie  Railroad  Co..  5  \>oom.  151;  Smith  v.  Iricin,  22  Id.  'oj ; 
Foley  V.  Jersey  City  Electric  Light  Co.,  25  Id.  411  :  .Vrtc  York.  Sn<!- 
quehanna  and  Western  Railroad  Co.  v.  Marion,  28  Id.  94;  Electric 


126  APPENDIX. 

Co.  V.  Kelly,  Id.  lOO;  Western  Union  Telegraph  Co.  v.  McMuUen,  29 
Id.  155  ;  Chandler  v.  Coast  Electric  Railway  Co.,  32  Id.  380;  Johnson 
V.  Devoe  Snuff  Co.,  33  /rf.  417;  Dillenberger  v.  Weingartner,  35  /d. 
292;  Christenson  v.  Lambert,  38  /cf.  341.^ 


DOUGHERTY,  Respondent,  t/.  WEST  SUPERIOR  IRON  and 

STEEL  COMPANY,  Appellant. 

Supreme  Court  of  Wisconsin,  1894.    88  Wis.  343- 

The  plaintiff  was  employed  to  make  cores  to  be  used  in  casting 
iron  pipes — upon  spindles  run  by  hand  power;  but,  after  so  serving 
for  four  or  five  months,  was  set  to  work  upon  spindles  run  by  steam 
power.  He  objected  to  the  work  as  being  "too  heavy"  for  him,  but 
was  told  to  "either  go  there  or  get  out."  He  obeyed  and  was  soon 
after  injured.  Upon  trial,  the  jury  found  a  verdict  for  the  plaintiff, 
from  judgment  upon  which  the  defendant  appealed. 

PiNNEY,  J-  We  must  hold,  therefore,  upon  the  facts  of  the 
case  and  the  well-settled  rule  of  law  applicable  to  them,  that  the 
injurv  the  plaintiff  received  was  from  one  of  the  ordinary  risks  of 
the  work  he  was  engaged  in,  and  that  upon  entering  upon  the  work 
by  direction  of  the  foreman  and  under  the  circumstances  stated,  he 
assumed  the  risk,  and  is  therefore  not  entitled,  iipon  the  facts  shown, 
to  recover  in  this  action.  The  cases  in  this  court  are  too  numerous 
and  too  plain  to  justify  further  discussion. 

The  fact  that  Bums,  the  foreman,  told  the  plaintiff,  when  he 
objected  to  working  on  the  spindles  driven  by  steam.  "Either  go 
there  or  get  out,"  does  not  obviate  the  objection  to  the  plaintiff's 


'See  Jragner  v.  Jayne  Chemical  Co.,  ante,  p.  442,  and  Schall  v.  Cole, 
107  Pa.  I  (1884).  Where  the  question  is  as  to  whether  the  plaintiff  assumes 
the  risk  of  injury  from  a  defective  condition  of  a  complicated  machine — his 
knowledge  or  ignorance  of  the  construction  of  the  machine  will  determine 
whether  the  risk  is  obvious  to  him  or  not.  Heffernan  v.  Fall  River  Iron  Co., 
197  Mass.  28  (1907). 

So  it  is  held  that  a  servant  does  not  assume  the  risk  of  injury  from  con- 
ditions even  if  known  to  him  if  such  conditions  are  only  possibly  dangerous. 
"Acquiescence  ought  to  rest  on  positive  knowledge,  or  reasonable  means  of 
positive  knowledge,  of  the  precise  danger  assumed  ;  not  on  vague  surmise  of 
the  possibility  of  danger."  Ryan,  C.  J.,  Dorsey  v.  Phillips,  etc.,  Co.,  42  Wis. 
^3  (1877),  p.  598:  Rase  v.  Ry.  Co.,  107  Minn.  260  (1909).  a  servant  does 
not  assume  as  matter  of  law  the  risk  of  injury  from  unguarded  machinery 
with  which  he  could  only  come  into  contact  if  something  should  happen  to 
cause  him  to  fall  in  that  direction. 

It  is.  however,  not  necessary  that  the  servant  should  realize  the  extent 
or  gravity  of  the  injury  threatened,  Feeley  v.  Pearson  Cordage  Co.,  161  Mass. 
426  (189-1),  where  a  workman  was  scalded  by  falling  into  an  uncovered 
well ;  he  knew  of  the  well  but  did  not  know  it  contained  boiling  water.  "It 
does  not  matter,"  said  Morton,  J.,  "that  he  did  not  know  of  the  precise 
extent  or  character  of  the  injury  he  would  sustain  if  he  fell  into  the  well. 
Such  a  test  would  introduce  an  impracticable  element  into  the  doctrine  of 
assumption  of  the  risk.  It  is  enough  that  he  knew  that  he  might  fall  into  the 
well  and  continued  at  his  employment  without  objection.  He  must  be  held 
to  have  assumed  the  risk  of  whatever  injury  he  might  receive  by  falling 
into  the  well." 


DOUGHERTY   Z\    WEST   SUPERIOR    IRON    &   STEEL   CO.  1 27 

right  to  recover.  If  an  employee  of  full  age  and  ordinary  intelli- 
gence, upon  being  required  by  his  employer  to  perform  duties  more 
dangerous  or  complicated  than  those  embraced  in  his  original  hir- 
ing, undertakes  the  same,  knowing  their  dangerous  character,  al- 
though unwillingly,  from  fear  of  losing  his  employment,  and  is  in- 
jured by  reason  of  his  ignorance  and  inexperience,  he  cannot  main- 
tain an  action  therefor  against  his  employer.  Leary  v.  B.  &  A.  R. 
Co.,  139  Mass.  580;  Bradshaw's  Adm'r.  v.  L.  &  N.  R.  Co.  (Ky.),  21 
S.  W.  Rep.  346;  Woodley  v.  Metropolitan  R.  Co.,  L.  J.  46  Exch. 
Div.  521.  Whatever  danger  or  peril  there  was  in  the  work  he  was 
ordered  to  do  was,  as  already  observed,  plain  and  obvious.  His 
objection  to  doing  the  work  was  not  that  it  was  dangerous,  but  that 
he  did  not  understand  it,  and  particularly  that  he  was  not  strong 
enough  to  handle  the  cores.  But,  if  he  saw  and  understood  that  the 
work  was  of  a  dangerous  character,  it  was  his  duty  to  decline  the 
employment. 

For  these  reasons  it  is  plain  that  the  recovery  cannot  be  sus- 
tained.^ 


^Accord:  Leary  v.  Boston  &  Albany  R.  R.,  139  Mass.  580  (1885),  in 
which  Devens,  J.,  says,  p.  587,  "Morally  to  coerce  a  servant  to  an  employment, 
the  risks  of  which  he  does  not  wish  to  encounter,  by  threatening  to  deprive 
him  of  an  employment  he  can  readily  and  safely  perform,  may  sometimes 
be  harsh ;  but  when  one  has  assumed  an  employment,  if  an  additional  and 
more  dangerous  duty  is  added  to  his  original  labor,  he  may  accept  or  refuse 
it.  If  he  has  an  executory  contract  for  the  original  service,  he  may  refuse 
the  additional  and  more  dangerous  service  ;  and,  if  for  that  reason  he  is  dis- 
charged, he  may  avail  himself  of  his  remedy  on  his  contract,"  see  the  similar 
view  expressed  by  Lord  Bramwell  as  to  the  rights  of  a  workman,  the  dangers 
of  whose  employment  are  unduly  increased  after  he  enters  into  it.  Smith  v. 
Baker,  L.  R.  16  App.  Cases,  ^25  (i8gi ),  p.  346. 

Accord:  also,  Sweeney\.  Envelope  Co.,  loi  N.  Y.  520  (1885),  where  the 
servant  was  injured  while  performing  the  same  services  he  had  engaged  to 
render,  by  a  defect  patent  when  he  was  engaged;  Lamson  v.  American  .Ax- 
Co.,  iy7  Mass.  144  (1900),  and  Atchison,  etc.,  R.  R.  v.  Schrocdcr,  47  Kans. 
315  (1891),  where  the  risks  were  unduly  increased  after  the  plaintifif  had 
entered  the  defendant's  service.  It  seems  to  be  immaterial  whether  the 
servant  encounters  the  risk  while  engaged  in  the  ordinary  routine  labor  of 
his  employment,  as  in  Lamson  v.  Co.  and  Atchison  R.  R.  v.  Schrocdcr,  supra, 
or  in  obedience  to  a  specilic  peremptory  order,  as  in  the  principal  case  and 
Worlds  V.  R.  R.,  99  Ga.  283  (1896),  but  see  contra,  IVclls  &  French  Co.  v. 
Krapaczyuski  218  111.  149  (1909),  Scott,  J.,  diss,  aixi  Mason  v.  7?.  /?.,  in  N.  C. 
482  (1892).  Nor  is  it  material  that  the  plaintiff's  only  alternative  to  facing 
the  danger  is  the  permanent  loss  of  his  employment  or  a  mere  temporary 
lay  off.  Prentiss  v.  Kent  Co.,  63  Mich.  478  (1886),  or  that  the  threat  of 
dismissal  is  express,  as  in  Sweeney  v.  Co.,  Lamson  v.  Co.  and  Leary  v.  Co., 
supra.,  or  tacit,  as  in  Atchison  R.  R.  v.  Schrocdcr  and  IVorlds  v.  R.  R., 
supra. 

But  a  peremptory  order,  while  not  relieving  the  servant  from  the  assump- 
tion of  all  the  risk^  which  the  latter  realizes  that  its  obedience  involves,  is 
often  an  important  factor  in  determining  whether  he  actually  appreciated  a 
risk  obvious  to  one  not  acting  under  the  same  pressure. 

Such  an  order  may  well  mislead  the  servant  into  a  false  sense  of  security 
and  prevent  his  observing  otherwise  obvious  defects,  Lee  v.  ll'oolsey,  109 
Pa  127  (1885)  ;  Haley  v.  Case.  142  Mass.  316  (1886)  :  nor  is  the  servant 
bound  to  set  up  his  own  judgment  against  that  of  his  employer  or  superior, 
Wagner  v  Jayne  Chemical  Co.,  ante,  p.  442;  Indiana  Car  Co.  v  Parker, 
100  Ind    181   (1884)  ;  Shortel  v.  St.  Joseph,  104  Mo.  114  (1891)  ;  Hawley  v. 


128  APPENDIX. 


SMITH  V.  BAKER. 
House  of  Lords,   1891.     L.  R.   16  Appeal  Cases,  324. 

The  plaintiff  had  been  working  for  the  defendants  (who  were 
railway  contractors)  for  some  months  prior  to  the  accident.  The 
duties  first  assigned  to  him  were  to  fill  crates  with  stones ;  he  was 
next  engaged  in  slinging  stones  on  to  the  crate  and  about  two  months 
before  the  accident  he  was  set  to  work  with  two  other  workmen  to 
drill  holes  in  the  rock,  he  working  the  drill  while  the  others  worked 
the  hammers.  On  the  day  of  the  accident  he  was  sent  to  drill  a  hole 
in  the  rock  in  a  cutting  near  a  crane  worked  by  men  in  the  defend- 
ants' employ. 

The  crane  lifted  stones  and  at  times  swung  them  over  the  plain- 
tiff's head  without  warning.  The  plaintiff'  was  fully  aware  of  the 
danger  to  which  he  was  exposed  by  thus  working  near  the  crane 
without  any  warning  being  given,  and  had  been  thus  employed  for 
months.  A  stone  having  fallen  from  the  crane  and  injured  the 
plaintiff,  he  sued  his  employers  in  the  County  Court  under  the  Em- 
ployers' Liability  Act,  1880.  The  jury  found  (i)  that  the  ma- 
chinery for  lifting  the  stone,  taken  as  a  whole,  was  not  reasonably 
fit  for  the  purpose  for  which  it  was  applied;  (2)  that  the  omission 
to  supply  special  means  of  warning  was  a  defect  in  the  ways,  works, 
machinery  and  plant;  (3)  that  the  employers  (or  some  person  en- 
gaged by  them  to  look  after  the  condition  of  the  works,  &c.)  were 
guilty  of  negligence  in  not  remedying  the  defect;  (4)  that  the  plain- 
tiff was  not  guilty  of  contributory  negligence;  (5)  that  he  did  not 
voluntarily  undertake  a  risky  employment  with  a  knowledge  of  its 
risks ;  and  returned  a  verdict  for  the  plaintiff  for  damages. 

Application  was  made  on  behalf  of  the  defendants  to  have 
judgment  entered  for  them,  notwithstanding  the  findings  of  the 
jury,  on  the  ground  that  the  case  ought  not  to  have  been  allowed 
to  go  to  them,  the  plaintiff  having  admitted  that  he  knew  of  the 
risk  and  voluntarily  incurred  it.  The  learned  judge  directed  judg- 
ment to  be  entered  for  the  plaintiff  for  £100,  the  amount  of  damage 
assessed  by  the  jury.  Notice  of  a  motion  to  set  aside  the  judgment 
and  to  have  judgment  entered  for  the  defendants  was  afterwards 
given  in  the  Queen's  Bench  Division.  The  grounds  stated  in  that 
notice,  so  far  as  are  now  material,  were  as  follows : 


R.  R.,  82  N.  Y.  370  (1880)  ;  Stapleton  v.  Traction  Co.,  5  Sup.  Ct.  (Pa.)  253 
(1897),  especially  when  the  superior  promises  to  see  to  the  protection  of  the 
inferior  while  he  is  at  work,  Reese  v.  Clark,  198  Pa.  312  (1901),  but  a 
servant  is  not  entitled  to  rely  on  even  a  positive  assurance  of  safety  given 
by  the  master,  if  the  danger  is  so  obvious  that  he  must  recognize  that  it  is 
false,  Shouvlfer  v.  Fairbanks,  88  Wis.  380  (1894);  Toomey  v.  Eureka  Co., 
89  Mich.  249  (1891).  In  the  earlier  cases,  in  which  assumption  of  risk  is  not 
distinguished  from  contributory  negligence  and  the  servant's  knowledge  of 
the  defective  conditions  is  treated  merely  as  a  factor  in  determining  whether 
he  has  acted  negligently  in  remaining  in  the  defendant's  service,  the  fact 
that  the  servant  is  peremptorily  ordered  to  face  a  known  peril  is  ofteit 
regarded  as  an  essential  element  for  the  jury's  consideration  upon  this  issue. 
See  East  Tennessee  R.  R.  v.  Dufficld,  12  Lea  (Tenn.)  63  (1883). 


SMITH   V.   BAKER. 


129 


"That  the  case  ought  not  to  have  been  allowed  by  the  judge  to 
go  to  the  jury,  the  plaintiff  having  admitted  that  he  knew  of  the 
risk  which  caused  his  injury,  and  voluntarily  incurred  it. 

"That  on  the  plaintift'"s  own  admissions,  made  on  the  trial  of 
the  action,  a  non-suit  ought  to  have  been  entered  by  the  judge. 

"That  the  entry  of  the  said  judgment  for  the  plaintiff  was  and 
is  bad  in  law,  and  that  the  judge  ought  not  to  have  entered  judg- 
ment for  the  plaintiff." 

The  Divisional  Court  (Huddelston  B,  and  Wills  J.),  before 
whom  the  appeal  came,  thinking  that  there  was  a  conflict  between 
the  decisions  of  the  Court  of  Appeal  in  the  cases  of  Yarmouth  v. 
France  [19  Q.  B.  D.  647]  and  Thomas  v.  Quartermaine  [18  Q.  B.  D. 
685],  which  they  were  unable  to  reconcile,  and  which  it  was  desir- 
able that  the  Court  of  Appeal  should  explain,  dismissed  the  appeal, 
at  the  same  time  granting  leave  to  appeal. 

The  Court  of  Appeal  (Lord  Coleridge  C.  ].,  Lindley  and 
Lopes  L.J  J.)  reversed  the  judgment  of  the  court  below  and  entered 
judgment  for  the  defendants,  mainly,  or  it  may  be  said  exclusively, 
on  the  ground  that  there  was  no  evidence  of  negligence  on  the  part 
of  the  defendants,  although  the  Lord  Chief  Justice  expressed  an 
opinion  that  the  judgment  of  the  county  court  judge  ought  to  be 
set  aside  on  another  ground  also ;  namely,  that  the  plaintiff  had 
been  engaged  to  perform  a  dangerous  operation  and  took  the  risk 
of  the  operation  he  was  so.  called  upon  to  perform\ 

Lord  Halsbury  L.  C.  :  The  objection  raised,  and  the  only 
objection  raised,  to  the  plaintiff's  right  to  recover  was  that  he  had 
voluntarily  undertaken  the  risk.  That  is  the  question,  and  the 
only  question,  which  any  of  the  courts,  except  the  county  court 
itself,  had  jurisdiction  to  deal  with.  Now,  the  facts  upon  which 
that  question  depends  a^e  given  by  the  plaintiff  himself  in  his  evi- 
dence. Speaking  of  the  operation  of  slinging  the  stones  over  the 
heads  of  the  workmen,  he  said  himself  that  it  was  not  safe,  and 
that  whenever  he  had  sufficient  warning,  or  saw  it.  he  got  out  of 
the  way.  The  ganger  told  the  workmen  employed  to  get  out  of 
the  way  of  the  stones  which  were  being  slung.  The  plaintiff 
said  he  had  been  long  enough  at  the  work  to  know  that  it  was  dan- 
gerous,, and  another  fellow-workman  in  his  hearing  complained  that 
it  was  a  dangerous  practice. 

My  Lords,  giving  full  effect  to  these  admissions,  upon  which 


'  "The  Lord  Chief  Justice  said  that,  in  liis  opinion,  the  jiidj^ment  mnst 
be  reversed  upon  two  grounds.  The  first  ground  was  that  the  case  was 
within  the  decisions  in  which  it  was  held  that  a  person  engaged  to  perform 
dangerous  work  and  taking  the  risk  of  the  danger  could  not  recover  for 
an  injury  caused  by  such  dangerous  work.  There  never  was  a  doubt  of 
that  doctrine  before  the  Employers'  Liability  Act,  nor  had  there  been  a 
doubt  since.  The  supposed  difficulties  which  arose  from  the  decision  of  this 
Court  in  Yarmouth  v.  France  and  other  cases,  where  the  workman  was 
not  engaged  to  perform  dangerous  work,  were  not  in  question  now."  Lord 
Lindley  concurring,  said,  inter  alia:  "The  case  of  Yarmouth  v.  France  was  not 
like  the  present  case.  The  plaintiff  there  was  employed  to  drive  a  cart, 
a  vicious  horse  was  put  upon  him.  and  he  complained.  He  vras  not  em- 
ployed to  break  or  drive  vicious  horses."     5  Times  L.  R.  518  (ir""' 


T30 


APPEXniX. 


the  whole  case  for  the  defendants  depends,  it  appears  to  me  that  the 
utmost  that  they  prove  is  that  in  the  course  of  the  work  it  did  occa- 
sionally happen  that  stones  were  slung  in  this  fashion  over  work- 
men's heads,  that  the  plaintiff  knew  this,  and  believed  it  to  be 
dangerous,  and  whenever  he  could  he  got  out  of  the  way.  The  ques- 
tion of  law  that  seems  to  be  in  debate  is  whether  upon  these  facts, 
and  on  an  occasion  when  the  very  form  of  his  employment  prevented 
him  from  looking  out  for  himself,  he  consented  to  undergo  this 
particular  risk,  and  so  disentitled  himself  to  recover  when  a  stone 
was  negligently  slung  over  his  head  or  negligently  permitted  to  fall 
on  him  and  do  him  injury. 

My  Lords,  I  am  of  opinion  that  the  application  of  the  maxim 
volenti  non  fit  injuria  is  not  warranted  by  these  facts.  I  do  not 
think  the  plaintiff"  did  consent  at  all.  His  attention  was  fixed  upon 
a  drill,  and  while,  therefore,  he  was  unable  to  take  precautions  him- 
self, a  stone  was  negligently  slung  over  his  head  without  due  pre- 
cautions against  its  being  permitted  to  fall. 

Now,  I  say  that  here  evidence  of  negligence  must  by  the  form 
of  procedure  below  be  admitted  to  have  been  given,  and  the  sole 
question  to  be  dealt  with  is  that  with  which  I  am  now  dealing.  For 
my  own  part,  I  think  that  a  person  who  relies  on  the  maxim  must 
show  a  consent  to  the  particular  thing  done.  Of  course,  I  do  not 
mean  to  deny  that  a  consent  to  the  particular  thing  may  be  inferred 
from  the  course  of  conduct,  as  well  as  proved  by  express  consent; 
but  if  I  were  to  apply  my  proposition  to  the  particular  facts  of  this 
case,  I  do  not  believe  that  the  plaintiff  ever  did  or  would  have  con- 
sented to  the  particular  act  done  under  the  particular  circumstances. 
He  would  have  said,  "I  cannot  look  out  for  myself  at  present.  You 
are  employing  me  in  a  form  of  employment  in  which  I  have  not  the 
ordinary  means  of  looking  out  for  myself;  I  must  attend  to  my 
drill,  li  you  will  not  give  me  warning  when  the  stone  is  going  to 
be  slung,  at  all  events  let  me  look  out  for  myself,  and  do  not  place 
me  under  a  crane  which  is  lifting  heavy  stones  over  my  head  when 
you  keep  my  attention  fixed  upon  an  operation  which  prevents  me 
looking  out  for  myself." 

It  appears  to  me  that  the  proposition  upon  which  the  defendants 
must  rely  must  be  a  far  wider  one  than  is  involved  in  the  maxim, 
volenti  non  fit  injuria.  I  think  they  must  go  to  the  extent  of  saying 
that  wherever  a  person  knows  there  is  a  risk  of  injury  to  himself, 
he  debars  himself  from  any  right  of  complaint  if  an  injury  should 
happen  to  him  in  doing  anything  which  involves  that  risk.  For  this 
purpose,  and  in  order  to  test  this  proposition,  we  have  nothing  to  do 
with  the  relation  of  employer  and  employed.  The  maxim  in  its 
application  in  the  law^  is  not  so  limited ;  but  where  it  applies,  it  applies 
equally  to  a  stranger  as  to  anyone  else ;  and  if  applicable  to  the 
extent  that  is  now  insisted  on,  no  person  ever  ought  to  have  been 
awarded  damages  for  being  run  over  in  London  streets ;  for  no  one 
(at  all  events  some  years  ago,  before  the  admirable  police  regula- 
tions of  later  years)  could  have  crossed  London  streets  without 
knowing  that  there  was  a  risk  of  being  run  over. 

It  is,  of  course,  impossible  to  maintain  a  proposition  so  wide? 


SMITH   f.    IIAKER.  13! 

as  is  involved  in  the  example  I  have  just  given ;  and  in  both  Thomas 
V.  Quartennainc  [i8  Q.  B.  D.  685]  and  in  Yannonth  v.  France  [19 
Q.  B.  D.  647],  it  has  been  taken  for  granted  that  mere  knowledge  of 
the  risk  does  not  necessarily  involve  consent  to  the  risk.  Bovven, 
L.  J.,  carefully  points  out  in  the  earlier  case  {Thomas  v.  Quartcr- 
maine)  that  the  maxim  is  not  scienti  non  fit  i)ijuria,  but  voloiti 
nan  fit  injuria.  And  Lindley,  L.  J.,  in  quoting  Bowen,  L.  J.'s  distinc- 
tion with  approval,  adds  [19  Q.  B.  D.  660]  :  "The  question  in  each 
case  must  be,  not  simply  whether  the  plaintiff  knew  of  the  risk,  but 
whether  the  circumstances  are  such  as  necessarily  to  lead  to  the  con- 
clusion that  the  whole  risk  was  voluntarily  incurred  by  the  plaintiff." 
And  again,  Lindley,  L.  J.,  says:  "If  in  any  case  it  can  be  shown 
as  a  fact  that  a  workman  agreed  to  incur  a  particular  danger,  or  vol- 
untarily exposed  himself  to  it,  and  was  thereby  injured,  he  cannot 
hold  his  master  liable.  But  in  the  cases  mentioned  in  the  Act,  a 
workman  who  never  in  fact  engaged  to  incur  a  particular  danger, 
but  who  finds  himself  exposed  to  it  and  complains  of  it,  cannot  in 
my  opinion  be  held,  as  a  matter  of  law,  to  have  impliedly  agreed  to 
incur  that  danger,  or  to  have  voluntarily  incurred  it,  because  he  does 
not  refuse  to  face  it."  Again,  Lindley,  L,  J.,  says:  "If  nothing 
more  is  proved  than  that  the  workman  saw  danger,  reported  it,  but, 
on  being  told  to  go  on,  went  on  as  before  in  order  to  avoid  dismissal, 
a  jury  may,  in  my  opinion,  properly  find  that  he  had  not  agreed  to 
take  the  risk  and  had  not  acted  voluntarily  in  the  sense  of  having 
taken  the  risk  upon  himself." 

I  am  of  opinion  myself,  that  in  order  to  defeat  a  plaintift"'s 
right  by  the  application  of  the  maxim  relied  on,  who  would  other- 
wise be  entitled  to  recover,  the  jury  ought  to  be  able  to  affirm  that 
he  consented  to  the  particular  thing  being-'done  which  would  involve 
the  risk,  and  consented  tc\take  the  risk  upon  himself.'  It  is  manifest 
that  if  the  proposition  which  I  have  just  enunciated  be  applied  to  this 
case,  the  maxim  could  here  have  no  application.  So  far  from  con- 
senting, the  plaintiff  did  not  even  know  of  the  particular  operation 
that  was  being  performed  over  his  head  until  the  injury  happened 
to  him,  and  consent,  therefore,  was  out  of  the  tjuestion. 

As  I  have  intimated  before,  I  do  not  deny  that  a  particular  con- 
sent may  be  inferred  from  a  general  course  of  conduct.  Every 
sailor  who  mounts  the  rigging  of  a  ship  knows  and  appreciates  the 
risk  he  is  encountering.  The  act  is  his  own,  and  he  cannot  be  said 
not  to  consent  to  the  thing  which  he  himself  is  doing.  And  exam- 
ples might  be  indefinitely  multiplied  where  the  essential  cause  of  the 
risk  is  the  act  of  the  complaining  plaintiff  himself,  and  where,  there- 
fore, the  application  of  the  maxim,  volenti  non  fit  injuria,  is  com- 
pletely justified. 

Lord  Bramwell:  The  case  is  now  before  your  Lordships,  and 
there  cannot  be  a  doubt  how  it  ought  to  be  decided,  unless,  by  some 
miscarriage  of  jury  or  judge  or  counsel,  the  defendants  are  to  be 
made  liable  where  they  are  absolutely  free  from  legal  blame. 


^Compare  Fitzgerald  v.  Paper  Co..   155   Mass.    155    (1891)  ;   Mahoney  v. 
Dore,  lb.  513;   Urquhart  v.  Smith  &r  Anthony  Co.,  192  Mass.  257   (1906). 


132  APPENDIX. 

In  the  course  of  the  argument  I  said  that  the  maxim  volenti 
lion  fit  injuria  did  not  apply  to  a  case  of  neghgence;  that  a  person 
never  was  volens  that  he  should  be  injured  by  negligence — at  least, 
unless  he  specially  agreed  to  it ;  I  think  so  still.  The  maxim  applies 
where,  knowing  the  danger  or  risk,  the  man  is  volens  to  undertake 
the  work.  And  I  think  the  maxim  does  apply  here;  for  the  com- 
plaint in  the  statement  of  claim  (the  only  thing  proved)  was,  that 
there  was  no  one  to  give  notice  when  the  stone  was  passing  over 
where  the  plaintiff  was  at  work.  If  this  was  wrong,  the  plaintiff' 
knew  of  it  and  voluntarily  undertook  the  risk.  The  case  is  different 
to  a  street  accident,  where  a  man  is  injured  by  the  act  of  one 
between  whom  and  him  there  is  no  relation.  It  is  not  dangerous 
apart  from  negligent  driving.  There  is  indeed  a  likeness.  I  admit 
that  personal  negligence  in  the  master  would  make  him  liable ;  so 
also  the  use  of  dangerous  plant  not  known  to  the  servant. 

If  this  is  a  maxim,  is  it  any  the  worse?  What  are  maxims 
but  the  expression  of  that  which  good  sense  has  made  a  rule? 
It  is  a  rule  of  good  sense  that  if  a  man  voluntarily  undertakes  a 
risk  for  a  reward  which  is  adequate  to  induce  him,  he  shall  not,  if 
he  suffers  from  the  risk,  have  a  compensation  for  which  he  did 
not  stipulate.  He  can,  if  he  chooses,  say,  "I  will  undertake  the 
risk  for  so  much,  and  if  hurt,  you  must  give  me  so  much  more,  or 
an  equivalent  for  the  hurt."  But  drop  the  maxim.  Treat  it  as  a 
question  of  bargain.  The  plaintiff  here  thought  the  pay  worth  the 
risk,  and  did  not  bargain  for  a  compensation  if  hurt;  in  effect, 
he  undertook  the  work,  with  its  risks,  for  his  wages  and  no  more. 
He  says  so.  Suppose  he  had  said,  "If  I  am  to  run  this  risk,  you 
must  give  me  6s.  a  day  and  not  ^s.,"  and  the  master  agreed,  would 
he  in  reason  have  a  claim  if  he  got  hurt?  Clearly  not.  What 
difference  is  there  if  the  master  says,  "No;  I  will  only  give  the  5^."? 
None.  I  am  ashamed  to  argue  it.  I  refer  to  the  judgments  of 
Bowen  and  Fry,  L.JJ.  in  Thomas  v.  Quarter maine. 

There  is  a  confusion  in  the  case.  "Volenti  non  fit  injuria,"  say 
the  defendants.  The  plaintiff  answers,  "But  you  were  negligent."' 
The  defendants  reply,  "No,  we  were  not."  The  plaintiff"  rejoins, 
"You  did  not  take  that  objection  at  the  trial."  I  do  not  agree.  But 
supposing  it  was  so,  what  has  that  got  to  do  with  the  question? 
The  plaintiff  advances  this  proposition,  "You  cannot  rely  on  volenti 
non  fit  injuria,  because  that  does  not  apply  to  a  case  of  negligence. 
A  man  may  be  volens  to  encounter  the  natural  dangers  of  a  busi- 
ness, but  not  those  superadded  by  negligence."  I  agree.  But  the 
plaintiff's  proposition  involves  that  he  must  make  out  negligence 
to  take  the  case  out  of  the  rule.  Assume  that  the  defendants  at 
the  trial  only  took  the  objection  volenti  non  fit  injuria,  that  meant. 
"You  were  willing  to  run  the  ordinary  risks;  if  you  say  there  was 
anything  extraordinary,  show  it."  There  certainly  was  none,  for 
the  reason  I  have  given.  Why  are  we  to  say  that  the  danger  was 
enhanced  when  there  is  positively  no  evidence  of  it?  What  was  the 
danger  the  plaintiff  was  willing  to  run?  This:  having  stones 
slung  in  a  particular  way  jibbed  over  his  head,  with  the  risk  of 
their  falling  from  bad  slinging  or  other  cause,  and  nobody  to  warn 


SMITH    t".    IIAKRR.  133 

him  when  the  jibbing  caused  the  stone  to  come  over  him.  How 
did  the  defendants  enhance  this?  Did  they  cause  the  stone  to  be 
slung  dangerously?  As  to  no  warning,  the  plaintiff  knew  he  would 
have  none.  The  plaintiff'  must  have  known  that,  if  not  inevitable 
or  probable,  the  accident  was  possible.  It  is  argued  that  there  was 
a  breach  of  duty  in  the  defendants.  What?  What  duty?  Did 
the  defendants  ever  undertake  with  the  plaintilY  that  they  would 
conduct  their  works  otherwise  than  as  they  did  that  day?  There 
is  no  such  thing  as  abstract  duty.  Is  there  any  evidence  that  the 
works  were  not  being  conducted  as  they  were  when  the  plaintiff 
entered  the  defendants'  service?  It  is  not  necessary  to  consider 
whether  this  action  would  lie  if  the  work  was  more  dangerous 
after  the  employment  had  been  entered  into,  and  the  workman  knew 
it.  It  was  indeed  once  held  that  if  an  obstruction  was  put  before 
a  cabman's  stable  he  might  run  into  it,  and,  if  damaged,  recover. 
I  think  the  right  course  for  the  workman  would  be  to  say,  'T 
entered  your  employment  with  a  certain  amount  of  risk,  or  with 
no  risk,  and  you  undertook  to  employ  me.  You  have  made  it  dan- 
gerous ;  that  is  a  breach  of  your  engagement,  and  I  sue  you." 
But  it  is  immaterial  in  this  case,  for  the  work  was  unchanged  in 
character,  and  was  the  same  when  he  entered  the  service  as  when 
he  was  hurt.  Besides,  in  these  services  every  week  there  is  a  new 
engagement,  and,  therefore,  his  last  week's  work  was  under  a  con- 
tract made  by  the  plaintiff,  with  full  knowledge  of  the  risk.  If  we 
suppose  the  contract  was  from  week  to  week,  till  determined  by 
notice,  surely  he  is  volcns  if  he  does  not  give  the  notice. 

It  is  said  that  to  hold  the  plaintiff  is  not  to  recover  is  to  hold 
that  a  master  may  carry  on  his  work  in  a  dangerous  way  and 
damage  his  servant.  I  do  so  hold,  if  th^  servant  is  foolish  enough 
to  agree  to  it.  This  sounds  very  cruel.  But  do  not  people  go  to 
see  dangerous  sports?  Acrobats  daily  incur  fearful  dangers,  lion- 
tamers  and  the  like.  Let  us  hold  to  the  law.  If  we  want  to  be 
charitable,  gratify  ourselves  out  of  our  own  pockets. 

Lord  Watson:  The  maxim,  volenti  non  fit  injuria,  originally 
borrowed  from  the  civil  law,  has  lost  much  of  its  literal  signiticance. 
A  free  citizen  of  Rome  who,  in  concert  with  another,  permitted  him- 
self to  be  sold  as  a  slave,  in  order  that  he  might  share  in  the  price,  suf- 
fered a  serious  injury;  but  he  was  in  the  strictest  sense  of  the  term 
volens/  The  same  can  hardly  be  said  of  a  slater  who  is  injured 
by  a  fall  from  the  roof  of  a  house ;  although  he  too  may  be  volcns 
in  the  sense  of  English  law.  In  its  application  to  questions  be- 
tween the  employer  and  the  employed,  the  maxim  as  now  used  gen- 
erally imports  that  the  workman  had  cither  expressly  or  by  implica- 
tion agreed  to  take  upon  himself  the  risks  attendant  upon  the  jiar- 
ticular  work  whi£h  he  was  engaged  to  perform,  and  from  which 
he  has  suffered  injury.  The  question  which  has  most  frequently 
to  be  considered  is  not  whether  he  voluntarily  and  rashly  exposed 
himself  to  injury,  but  whether  he  agreed  that,  if  injury  should 
befall  him.  the  risk  was  to  be  hi?  and  not  his  master's.  When,  as 
is  commonly  the  case,  his  acceptance  or  non-acceptance  of  the  risk 
is  l^ft  to  implication,  the  workman   cannot   reasonably  be  held  to 


134 


APPENDIX. 


have  undertaken  it  unless  he  knew  of  its  existence,  and  appreciated 
or  had  the  means  of  appreciating  its  danger.  But  assuming  that 
he  did  so,  I  am  unable  to  accede  to  the  suggestion  that  the  mere 
fact  of  his  continuing  at  his  work,  with  such  knowledge  and  appre- 
ciation, will  in  every  case  necessarily  imply  his  acceptance. 
Whether  it  will  have  that  effect  or  not  depends,  in  my  opinion,  to 
a  considerable  extent  upon  the  nature  of  the  risk,  and  the  work- 
man's connection  with  it,  as  well  as  upon  other  considerations  which 
must  vary  according  to  the  circumstances  of  each  case. 

Lord  Herschell:^  There  may  be  cases  in  which  a  workman 
would  be  precluded  from  recovering  even  though  the  risk  which  led  to 
the  disaster  resulted  from  the  employer's  negligence.  If,  for  example, 
the  inevitable  consequence  of  the  employed  discharging  his  duty  would 
obviously  be  to  occasion  him  personal  injury,  it  may  be  that,  if  with 
this  knowledge  he  continued  to  perform  his  work  and  thus  sustained 
the  foreseen  injury,  he  could  not  maintain  an  action  to  recover 
damages  in  respect  of  it.  Suppose,  to  take  an  illustration,  that 
owing  to  a  defect  in  the  machinery  at  which  he  was  employed  the 
workman  could  not  perform  the  required  operation  without  the 
certain  loss  of  a  limb.  It  may  be  that  if  he,  notwithstanding  this, 
performed  the  operation,  he  could  not  recover  damages  in  respect 
of  such  a  loss;  but  that  is  not  the  sort  of  case  with  which  we  have 
to  deal  here.  It  was  a  mere  question  of  risk  which  might  never 
eventuate  in  disaster.^  The  plaintiff  evidently  did  not  contem- 
plate injury  as  inevitable,  not  even,  I  should  judge,  as  probable. 
Where,  then,  a  risk  to  the  employed,  which  may  or  may  not  result 
in  injury,  has  been  created  or  enhanced  by  the  negligence  of  the 
employer,  does  the  mere  continuance  in  service,  with  knowledge 
of  the  risk,  preclude  the  employed,  if  he  suffer  from  such  negli- 
gence, from  recovering  in  respect  of  his  employer's  breach  of  duty? 
I  cannot  assent  to  the  proposition  that  the  maxim,  volenti  iioii  fit 
injuria,  applies  to  such  a  case,  and  that  the  employer  can  invoke 
its  aid  to  protect  him  from  liability  for  his  wrong. 

It  is  quite  clear  that  the  contract  between  employer  and  em- 
ployed involves  on  the  part  of  the  former  the  duty  of  taking 
reasonable  care  to  provide  proper  appliances,  and  to  maintain  them 
in  a  proper  condition,  and  so  to  carry  on  his  operations  as  not  to 
subject   those   employed   by   him   to   unnecessary    risk.      Whatever 


'  The  opinion  of  Lord  INIorris  is  omitted.  He  approves  of  the  decision 
of  the  Court  of  Appeal  in  Thomas  v.  Ouartermaine,  L.  R.  i8  Q.  B.  D.  685 
(1887),  and  of  the  principle  stated  by  Bowen,  L.  J.,  in  that  case,  viz.:  "When 
the  danger  is  visible  and  the  risk  appreciated,  and  when  the  injured  party, 
knowing  and  appreciating  both  risk  and  danger,  voluntarily  encounters  them, 
there  is,  in  the  absence  of  further  acts  of  omission  or  commission,  no  evi- 
dence of  negligence."  But  he  concurs  with  the  majority  because  the  jury 
had  found  that  the  machinery  for  "jibbing"  the  stones  was,  through  the  de- 
fendants' negligence,  unfit,  and  while  the  plaintiff  was  "both  sciens  and 
volens"  as  to  all  the  dangers  of  the  system  which  he  knew  was  practiced 
in  the  quarry,  "how  (could  he)  be  held  to  have  voluntarily  incurred  a  dan- 
ger from  unfit  machinery,  the  unfitness  of  which  he  was  admittedly  not 
aware  of." 

*cf.  Rase  v.  R.  R.,  107  Minn.  260  (1909). 


SMITH   r.    llAKIiR.  135 

the  dangers  of  the  employment  which  the  employed  undertakes, 
amongst  them  is  certainly  not  to  be  numbered  the  risk  of  the  em- 
ployer's negligence,  and  the  creation  or  enhancement  of  danger 
thereby  engendered.  If,  then,  the  employer  thus  fails  in  his  duty 
towards  the  employed,  I  do  not  think  that  because  he  does  not 
straightway  refuse  to  continue  his  service,  it  is  true  to  say  that  he 
is  willing  that  his  employer  should  thus  act  towards  him.  I  be- 
lieve it  would  be  contrary  to  fact  to  assert  that  he  either  invited 
or  assented  to  the  act  or  default  which  he  complains  of  as  a  wrong, 
and  I  know  of  no  principle  of  law  which  compels  the  conclusion 
that  the  maxim,  volenti  non  fit  injuria,  becomes  applicable. 

It  was  suggested  in  the  course  of  the  argimient  that  the  em- 
ployed might,  on  account  of  special  risk  in  his  employment,  receive 
higher  wages,  and  that  it  would  be  unjust  that  in  such  a  case  he 
should  seek  to  make  the  employer  liable  for  the  result  of  the  acci- 
dent. I  think  that  this  might  be  so.  If  the  employed  agreed,  in 
consideration  of  special  remuneration,  or  otherwise,  to  work  under 
conditions  in  which  the  care  which  the  employer  ought  to  bestow 
by  providing  proper  machinery  or  otherwise,  to  secure  the  safety 
of  the  employed,  was  wanting,  and  to  take  the  risk  of  their  absence, 
he  would  no  doubt  be  held  to  his  contract,  and  this  whether  such 
contract  were  made  at  the  inception  of  the  service  or  during  its 
continuance.  But  no  such  case  is  in  question  here.  There  is  no 
evidence  that  any  such  contract  was  entered  into  at  the  time  when 
the  plaintiff  was  first  engaged,  and  the  fact  that  he  continued  work 
notwithstanding  the  employer's  breach  of  duty  affords  no  evidence 
of  such  special  contract  as  that  suggested. 

In  Yarmouth  v.  France,  the  plaintiff  was  subjected  to  a  risk 
owing  to  a  defect  in  the  condition  of  wfiat  was  held  to  be  plant 
within  the  meaning  of  sedl.  i  of  the  Employers'  Liability  z\ct.  He 
complained  of  this  to  the  person  who  had  the  general  management 
of  the  defendant's  business,  but  was  told  nevertheless  to  go  on  with 
his  work.  He  did  so,  and  sustained  the  injury  for  which  he  brought 
his  action.  The  county  court  judge  gave  judgment  for  the  de- 
fendant on  the  ground  that  the  plaintiff  must  be  assumed  to  have 
assented  to  take  upon  himself  the  risk,  on  the  authority  of  Thomas 
V.  Qiiartermainc,  to  which  case  I  will  refer  immediately.  The 
Court  of  Appeal  ordered  a  new  trial.  Lindley,  L.  J.,  said:  "The 
Act  cannot,  I  think,  be  properly  construed  in  such  a  way  as  to 
protect  a  master  who  knowingly  provides  defective  plant  for  his 
workmen,  and  who  seeks  to  throw  the  risk  of  using  it  on  them  by 
putting  them  in  the  unpleasant  position  of  having  to  leave  their  situa- 
tions or  submit  to  use  what  is  known  to  be  unfit  for  use."  And  fur- 
ther on  he  observes:  "If  nothing  more  is  proved  than  that  the  work- 
man saw  danger,  reported  it,  but  on  being  told  to  go  on  went  on  as 
before  to  avoid  dismissal,  a  jury  may,  in  my  opinion,  properly  find 
that  he  had  not  agreed  to  take  the  risk,  and  had  not  acted  voluntarily 
in  the  sense  of  taking  the  risk  upon  himself." 

I  think  that  the  judgment  in  Yarmouth  v.  France  was  per- 
fectly right;  but  I  should  not  lay  the  same  stress  as  Lindley,  L.J., 
did  upon  the  fact  that  the  workman  had  remonstrated  against  the 


136  Ai'i'i:xr)ix. 

risk  to  which  he  was  exposed,  and  on  being  told  to  continue  his 
work  did  so  to  avoid  dismissal.  For  the  reasons  which  I  have 
given,  I  think  that  where  a  servant  has  been  subjected  to  risk  owing 
to  a  breach  of  duty  on  the  part  of  his  employer,  the  mere  fact  that 
he  continues  his  work,  even  though  he  knows  of  the  risk  and  does 
not  remonstrate,  does  not  preclude  his  recovering  in  respect  of  the 
breach  of  duty,  by  reason  of  the  doctrine,  volenti  non  fit  injuria, 
which  in  my  opinion  has  no  application  to  such  a  case.  It  ap- 
pears to  me  that  sect.  2,  sub-sect.  3,  of  the  Employers'  Liability 
Act,  indicates  that  the  Legislature  regarded  this  as  the  law.^ 


SCHLITZ  V.  PABST  BREWING  CO. 

Supreme  Court  of  Minnesota,  1894,  57  Minn.  303. 

GiLFiLLAN,  C.  J.  Plaintiff,  a  driver  of  defendants  employed 
to  drive  a  delivery  wagon,  was,  while  so  employed,  injured,  as  he 
claims,  through  a  dangerous  defect  in  the  wagon  he  was  using.  The 
evidence  was  such  as  to  justify  a  finding  that  the  wagon  was  de- 
fective to  such  a  degree  as  to  be  dangerous  to  the  driver,  and  that 
the  injury  to  plaintilif  was  in  consequence  of  its  dangerous  condi- 
tion. 

Both  parties,  employer  and  employe,  knew  equally  well  the 
dangerous  condition  of  the  wagon,  so  that,  under  ordinary  cir- 
cumstances it  would  be  a  case  of  the  assumption  of  risk  by  the 
employe  continuing  to  use  it. 


^The  same  rule  applies  where  the  defect  existed  when  the  plaintiff 
entered  the  defendant's  employment,  Williams  v.  Birmingham  Metal  Co.,  L.  R. 
1899,  2  Q.  B.  338:  "If  the  defence  of  'Volenti  non  fit  injuria'  was  to  be 
insisted  upon,  they  (the  defendants)  must  have  obtained  a  finding  of  the 
jury  in  their  favor."  A.  L.  Smith.  L.  J.,  p.  344.  So  Romer,  L.  J.,  says 
p.  345:  "In  order  to  escape  liability  the  employer"  (who  by  a  failure  to 
use  all  reasonable  precaution  to  protect  his  servant,  has  been  prima  facie 
liable  for  the  latter's  injuries)  "must  establish  that  servant  has  taken  upon 
himself  the  risk.  (This)  is  a  question  of  fact  to  be  decided  upon  the 
circumstances  of  each  case.  In  considering  such  question  the  circumstance 
that  he  has  entered  upon,  or  continued  in  his  employment  with  knowledge 
of  the  risk  and  of  the  absence  of  precautions  is  important,  but  not  neces- 
sarily  conclusive   against   him." 

In  America  this  case  has  been  followed  only  in  North  Carolina.  Lloyd 
v.  Hanes,  126  N.  C.  359  (1900),  where,  at  p.  363,  it  is  said  "the  doctrine 
of  assumption  of  risk  extends  no  further  than  that  if  a  machine  (is)  dai> 
gerous,  and  the  employee,  seeing  the  danger,  does  not  report  its  condi- 
tion, but  goes  on  with  his  work  in  disregard  of  it,  he  assumes  the  risk"; 
Presslyy.  Yarn  Mills.  138  N.  C.  4T0  (1905). 

Hn  Mobile,  etc.,  R.  R.  v.  Holhorn,  84  Ala.  133  (1887),  it  was  held  that 
under  §2590  of  the  Code  of  1886  (one  of  the  sections  in  which  a  practical 
counterpart  of  the  English  Employers'  Liability  Act  was  embodied),  a  com- 
pany which  actually  knew  that  its  plant  was  defective  could  not  set  up  as 
a  defense  against  the  servant  injured  thereby,  that  the  latter  knew  of  the 
defect  and  had.  without  complaining  or  giving  notice  thereof,  continued  his 
employment,  but  this  case  was  overruled  in  Railroad  v.  Allen,  99  Ala.  374 
(\ig2),  decided  upon  the  authority  of  Thomas  v.  Quartermaine.  Smith  v. 
Baker,  decided  the  year  before,  appearing  not  to  have  been  brought  to  the 
attention  of  the  Court. 


SCHLITZ  V.   PAHST   DREVVING  CO.  13/ 

But  it  is  a  well-settled  rule  that,  where  the  servant,  though 
he  knows  the  dangerous  condition  of  the  instrumentality  furnished 
him,  is  induced  to  continue  its  use  by  the  request  of  the  master,  and 
his  promise  to  remedy  the  defect  after  complaint  made  to  him  by 
the  servant,  he  may  continue  such  use  for  a  reasonable  time  for 
the  defect  to  be  remedied  without  assuming  the  risk  incident  to 
its  dangerous  condition,  unless  it  be  so  imminently  and  immedi- 
ately dangerous  that  a  man  of  ordinary  prudence  would  have 
refused  longer  to  use  it.  Greene  v.  Minneapolis  &  St.  L.  Ry.  Co., 
31  Minn.  248  (17  N.  W.  378). 

The  most  logical  reason  for  the  rule  is  that,  under  such  circum- 
stances, it  must  be  taken  as  understood  between  them  that  the  con- 
tinued use  in  the  then  condition  of  the  instrumentality,  being  for 
the  convenience  and  purposes  of  the  master,  is  to  be  at  his  risk,  and 
not  at  the  risk  of  the  servant.^ 

The  cases  in  which  the  rule  has  been  applied  have  been  cases 
where  there  was  a  promise  on  the  part  of  the  master  to  remedy  the 
defect.  But  we  can  see  no  difference  in  principle  between  such  cases 
and  those  where,  upon  the  servant's  objecting  to  continue  the  use, 
the  master  for  his  own  convenience  and  purposes,  induces  the 
servant  to  continue  it  for  a  short  time,  upon  the  promise  that  the 
use  shall  be  discontinued  at  the  end  of  such  time.  What,  for 
instance,  could  be  the  dift'erence  on  the  matter  of  assuming  the 
risk  between  a  promise  to  remedy  the  defects  of  this  particular 
wagon  and  a  promise  to  furnish  another  without  such  defects? 
We  can  see  none.- 

Of  course,  though  in  such  a  case  the  risk  incident  to  the  dan- 
gerous condition  of  the  instrumentality  ^is  on  the  master,  if  the 
servant,  by  his  own  negligence  in  the  manner  of  using  it,  bring 
injury  on  himself  the  maSter  will  not  be  liable.^ 


'In  Dempsey  v.  Sawyer,  95  Maine  295  (1901),  the  theory  that  the 
servant's  assumption  of  risk  is  based  upon  an  actual,  though  impHed,  agree- 
ment, is  carried  to  its  logical  limit.  By  complaint  the  servant  shows  his 
unwiilingness  to  continue  to  bear  the  risk,  by  the  promise  to  repair  the  risk 
is  transferred  to  the  master  ;  whether  the  servant,  by  continuing  to  work,  in 
the  expectation  that  the  promise  will  be  performed,  shows  a  wilhngness  to 
again  take  on   himself  the   risk   is  a  question   for  the   jury. 

In  Morden  Frog  Works  v.  Fries,  228  111.  246  (1907).  »t  is  said,  p.  251, 
that  "by  the  promise  a  new  relation  is  created,  whereby  the  master  impliedly 
agrees  that  the  servant  shall  not  be  lield  to  have  assumed  the  risk  for  a 
reasonable  time  following  the  promise." 

'If  the  premises  and  appliances  are  in  good  order  and  up  to  the  standard 
customary  in  similar  establishments,  the  servant  obtains  no  right  of  action 
because  the  master  promises  to  supply  some  additional  protection  Higguis 
V.  Fanning.  19=;  Pa.»^90  Ct90o)  :  Leonard  v.  Hermann  Ibid.  222:  \ealand\: 
R.  R.,  173  Mass.  42  (1899)  :  Branstrator  v.  R.  R..  108  Towa  377  (1899).  Nor 
can  a  promise  to  protect  a  servant  from  a  particular  danger,  e.g..  falling 
timber  relieve  the  servant  from  his  assumption  of  the  risk  of  injury  from 
the  negligence  of  his  fellow  servants.  J'ogt  v.  Hornstam,  81  Minn.  174 
( 1900) . 

'Texas  etc..  R.  R.  v.  Biugle.  9  Tex.  Civil  App.  322  ( i^.O  :  Boltou  v. 
Georgia,  'etc..  R.  R-,  83  Ga.  659;  Jones  v.  Nezv  American  File  Co,  21  R.  I. 
125    (1898). 


138  APPENDIX. 

Whether  that  was  this  case,  and  whether  the  wagon  was  so 
imminently  and  immediately  dangerous  that  an  ordinary  prudent 
man  would  refuse  to  use  it  longer,  was  for  the  jury. 

Judgment  affirmed.* 


*  Clarke  v.  Holmes,  7  H.  &  N.  937  (1862)  ;  Hough  v.  Railway  Co.,  100 
U.  S.  213  (1879);  District  of  Columbia  v.  McElligott,  117  U.  S.  621  (1886); 
Patterson  v.  R.  R.,  76  Pa.  389  (1874);  Webster  v.  Coal  Co.,  201  Pa.  278 
(1902);  Counsell  v.  Hall,  154  Mass.  468  (1888);  Rice  v.  Eureka  Co.,  174 
N.  Y.  385  (1903)  ;  Dowd  v.  Erie  R.  R.,  70  N.  J.  L.  451  (1904).  Contra:  Crich- 
ton  V.  Kerr,  i  Sc.  Sess.  Cases,  4th  Series,  407  (1863).  Alere  complaint  alone 
is  not  sufficient,  there  must  be  a  promise  to  repair  the  defect,  Shacklcton  v. 
R.  R.,  107  Mich.  16  (1895)  ;  mere  expressions  of  regret  for  the  existence  of 
the  defect  are  not  enough.  Riiss  v.  Rafsnydcr,  178  Pa.  397  (1896).  It  is 
however  said  in  Rush  v.  R.  R.,  36  Kans.  129  (1887),  p.  137,  that  a  servant 
may  expect  that  the  master  will  upon  notice  remedy  minor  defects  arising 
from  mere  wear  and  tear  and  requiring  only  ordinary  and  usual  repairs. 
The  promise  must  be  given  by  the  master  or  by  some  subordinate  who 
has  the  power  to  make  repairs  and  authority  to  promise  them.  Bowen 
V.  P.  R.  R.,  219  Pa.  405  (1908);  Jones  v.  Neiv  American  File  Co.,  21  R.  I. 
125  (1898)  :  Purkey  v.  Southern  Coal  Co.,  57  W.  Va.  595  (1905)  ;  Ehmcke  v. 
Porter,  45  Minn.  338  (1891)  ;  Wilson  v.  Winona  R.  R.,  Z7  Minn.  326  (1887)  ; 
but  see  Dells  Lumber  Co.  v.  Erickson,  80  Fed.  257  (1897),  where  it  is  held 
that  it  is  enough  that  the  servant  had  reason  to  believe  that  the  person 
making  the  promise  had  authority  to  make  it. 

The  servant  must  complain  of  the  defect  because  of  the  danger  to 
himself,  M  or  den  Frog  Co.  v.  Fries,  22S  111.  246  (1907)-  Not  because 
it  may  injure  some  one  else,  either  a  fellow  servant,  visitor  or 
patron  of  his  master,  Lewis  v.  R.  R.  Co.,  153  Mass.  73.(1891);  nor  be- 
cause it  makes  the  work  more  difficult.  Gowen  v.  Hailey,  56  Fed.  973 
(1893)  ;  nor  because  it  may  affect  the  quality  of  the  work  done.  Tesmer  v. 
Boehm,  58  111.  App.  609  (1895).  Not  only  must  he  complain  on  his  own 
account,  but  the  promise  to  repair  must  induce  him  to  remain  in  the  de- 
fendant's employment.  Lewis  v.  R.  R.,  supra;  Bodwell  v.  Nashua  Mfg.  Co., 
70  N.  H.  390  (1900)  ;  Showalter  v.  Fairbanks  Co.,  88  Wis.  376  (1894).  He 
must  establish  that  he  intended  to  leave  if  the  repairs  were  not  made,  Hay- 
hall  V.  R.  R.,  114  Mich.  135  (1897).  and  that  his  master  or  his  representa- 
tive understood  this  to  be  his  intention,  Morden  Co.  v.  Fries,  supra,  though 
this  intention  need  not  be  expressly  stated  to  the  master,  but  may  appear 
from  the  nature  of  the  complaint  and  the  circumstances  under  which  it  is 
made.  Ibid.  p.  251;  Rothenberger  v.  N.   W.  Mills  Co.,  57  Minn.  461   (1894). 

The  servant  is  entitled  to  believe  that  the  master  has  performed  his 
promise  and  to  expect  to  find  the  appliance  put  in  good  order  and  does 
not  assume  the  risk  of  injury  because  he  uses  it  without  subjecting  it  to 
an  examination  to  see  if  it  lias  been  repaired.  Northern  Pac.  R.  R.  v.  Bab- 
cock,  154  U.  S.   190   (1893).  ,       .       a  t.,      •      ..     -.u- 

Various  tests  have  been  laid  down  as  to  what  is  a  reasonable  time  within 
which  the  servant  mav  continue  to  work  under  conditions,  known  by  him  to  be 
defective,  in  the  expe'ctation  that  they  will  be  remedied.  It  is  said  to  be  such 
time  as  is  reasonablv  sufficient  to  enable  the  master  to  remedy  the  defect,  ///. 
Steel  Co.  v.  Mann.  170  111.  200  ( 1897)  ;  to  be  the  time  during  which  the  servant 
may  reasonablv  expect  the  master  to  fulfil  his  promise,  Counsell  v.  Hall,  supra :^ 
Mann  v  R  R.,  124  Mich.  641  (1900):  to  last  until  it  is  "made  manifest 
that  the  promise  will  not  be  kept.  M.  K.  &  T.  R.  R.  v.  Baker,  35  Tex.  Civ. 
App  542  (1904):  to  last  "until  such  time  has  elapsed  as  would  pre- 
clude all  reasonable  exoectation  that  the  defect  would  be  remedied,  Taylor 
v  Coal  Co.  no  Iowa.  40  (1899V  The  question  is  one  for  the  jury  under 
ail  the  circumstances  unless  it  be  clear  that  the  time  has  been  unreasonable. 
In  Meyer  v  Gunlach-Nclson  Co..  67  Mo.  App.  389  (1896),  and  IVeber  Co.  v. 
Keiil,  ^0  111.  App.  585  (1890.  two  weeks:  in  Rotherbcrger  V  N  W.  Co.,  57 
Minn  461  (1894),  ten  davs :  in  Harrison  v.  Collins.  2;  R.  I.  489  (igo^V  ?pv-j 
days, 'and  in  Belair  v.  R'.  R.,  43  Iowa  662  (1876),    three    months,    were   held 


BRiTTox  z\  g:^::at  wmsterx  cotton  co.,  ltd.  139 

Bramwell,  B.,  in  Britton  v.  The  Great  Jl'esteni  Cottojt  Com- 
pany, Ltd.,  Court  of  Exchequer,  1872,  27  L.  T.  N.  S.  125,'  at  p.  129: 

I  am  of  opinion  that  there  was  a  clear  breach  by  the  defendants 
of  their  statutory  duty.  And  now  comes  the  question,  and  one 
which  raises  the  chief  difficulty  in  the  case.  Can  the  plaintift'  main- 
tain the  present  action  ?  It  must  be  assumed  that  the  deceased  died 
from  injuries  received  from  the  fiy  wheel,  and  not  that  he  had  a  fit 
and  died,  and  was  caught  by  the  wheel  after  death.  The  maxim, 
volenti  nan  fit  i)ijuna,  is  well  known.  Does  it  apply  here?  I  think 
not.  The  man,  it  is  true,  was  a  volunteer  in  one  sense.  He  was, 
that  is,  volens,  in  the  sense  that  he  voluntarily  entered  on  the  employ- 
ment. He  need  not  have  gone  there.  But  in  order  to  make  the 
maxim  applicable,  he  must  not  only  have  been  a  volunteer,  but  he 
must  have  entered  on  the  service  with  a  knowledge  of  the  danger  and 
of  the  nature  and  extent  of  the  risk  which  he  was  about  to  run. 
Now  was  that  the  case  here?  It  has  been  suggested  that  the  man 
must  have  known  it ;  at  any  rate,  as  well  as  his  employers  did.  But 
I  do  not  think  that  that  is  at  all  necessarily  so,  for  it  must  be  re- 
membered that  the  deceased  was  not  what  is  called  a  "skilled  work- 
man," he  was  only  a  coal  trimmer;  nor  can  I  really  see  that  the  em- 
ployment was  very  dangerous,  or  the  place  of  necessity  so.  At  all 
events,  it  was  not  so  obviously  dangerous  that  the  deceased  must  be 
taken  to  have  knozviugly  encountered  the  danger,  and  run  the  risk. 
The  accident  most  likely  happened  from  some  misfortune,  such  as 


not  to  be,  as  matter  of  law,  unreasonable.  See  for  other  cases  Labatt,  Master 
and  Servant,  §430,  note  3.  When  the  complaints  and  promises  are  renewed 
the  servant  may  not  unreasonably  continue  iq.  his  employment  for  a  much 
longer  time  than  if  only  one  promise  was  made.  Maines  v.  Harbison  ] Talker 
Co.,  213  Pa.  145  (1906),  six  Veeks;  Clarke  v.  Holmes,  supra,  one  year. 

Where  the  repairs  are  promised  to  be  made  by  a  definite  time,  ex- 
pressly or  by  implication  (as  when  there  was  a  promise  to  repair  a  defec- 
tive locomotive  before  a  particular  trip,  Albrecht  v.  R.  R.,  108  Wis.  [1901]. 
530),  the  servant  who  continues  to  work  thereafter,  knowing  that  the  con- 
ditions remain  unchanged,  reassumes  the  risk.  Andreccik  v.  A'.  /.  Tube  Co., 
73  N.  J.  L.  644  (1906)  ;  Eureka  Co.  v.  Bass,  81  Ala.  200  (1886)  ;  Trotter  v. 
Chattanooga  Co..  loi  Tenn.  257  (1898).  ■     ■        r 

A  servant  does  not  assume  the  risk  of  injury  while  continuing  for  a 
reasonable  time  at  work  under  the  defective  conditions  in  the  expectation 
that  the  promised  repairs  will  be  made,  even  though  the  time  at  which 
they  are  to  be  done  is  indefinite,  Sapp  v.  Christie  Bros.,  79  Neb.  701  (1908)  ; 
master  promised  to  repair  when  "he  caught  up  to  his  orders.  Contra: 
Standard  Oil  Co.  v.  Hehnick,  148  Ind.  457  (iSy?).  al'[er,  where  a  definite 
time  is -set,  McFarland  v.  Potter,  153  Ind.  107  (1899)-  I."  some  jurisdictions 
a  distinction  is  made  between  a  promise  to  repair  a  simple  tool  or  appli- 
ance which  does  not  relieve  the  servant  continuing  his  work  in  conse- 
quence thereof  from  the  assumption  of  the  risk,  A/ar^/i  v.  C/Mr/:cn,,a.  loi 
N  Y  ^96  (1886)  ;  Baumwald  v.  Trenkman,  88  N.  Y.  S.  182  (1904)  ^Webster 
Mia  Co.  v.  Nesbitt,  20S  HI.  273  (1903)  :  Gozven  v.  Harley.  supra;  Meador  v. 
R  R  uS  Ind  290  (1894)  ;  and  a  promise  to  repair  a  complicated  machine, 
Lanina  v  R  R..  49  N.  Y.  521  (1872);  Szveeney  v.  Envelope  Co.  loi  N.  \. 
520  (1886)  ;  Morden  Co.  v.  Fries,  supra,  but  see  Spenser  v.  Uorthmgton.  44 
N.  Y.  App.'Div.  496  (1899).  ,,^    ^  ^     . 

»This  case  is  also  reported  in  L.  R.  7  Ex.  130;  20  W.  R-  5.25 ;  4i>-  J- 
Exch.  99  in  each  of  which  a  somewhat  different  version  of  this  opinion  is 
given. 


I40 


APPENDIX. 


might  have  happened  anywhere,  as  for  instance  a  fall,  or  a  sudden 
fit  of  giddiness,  or  some  misadventure  of  that  sort,  and  not  solely 
and  simply  from  the  dangerous  nature  of  the  place.  There  is  not 
in  the  present  case  the  dilemma  which  often  arises  in  an  action  for 
a  breach  of  a  common  law  duty,  namely,  either  the  danger  was 
obvious  or  it  was  not;  if  it  was  obvious,  the  servant  must  have 
known  it  as  well  as  the  master,  and  if  it  was  not  obvious,  there  was 
no  negligence  on  the  master's  part.  The  plaintiff  in  this  case  is  not 
in  that  dilemma,  because  the  duty,  the  breach  of  which  is  here 
charged  in  the  second  count,  is  a  statutory  one.^ 


NARRAMORE  v.  CLEVELAND  C.  C.  &  ST.  L.  RY.  CO. 

Circuit  Court  of  Appeals,  Sixth  Circuit,  1899-    96  Fed.  298;  37  C.  C.  A.  499. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the 
Western  Division  of  the  Southern  District  of  Ohio. 

The  plaintiff,  a  yard  switchman,  was  injured  while  coupling 
cars,  by  reason  of  his  foot  becoming  caught  in  an  unblocked  guard 
rail.  By  a  statute  of  Ohio  (85  Ohio  Laws,  p.  105),  it  \yas  enacted 
that  every  railroad  coporation  should  block  the  guard  rails  upon  its 
tracks,  "so  as  to  prevent  the  feet  of  its  employees  being  caught 
therein,"  and  that  a  failure  to  comply  with  the  provisions  of  this 
Act  should  be  punishable  by  a  fine  of  not  less  than  one  hundred  dol- 
lars, nor  more  than  one  thousand  dollars. 

At  the  close  of  the  evidence  the  trial  court  directed  the  jury  to 
return  a  verdict  for  the  defendant,  on  the  ground  that  the  defend- 
ant's failure  to  block  its  rails  and  switches  was  obvious,  and  the 
plaintiff  must  be  held,  notwithstanding  the  statute,  to  have  as- 
sumed the  risk  of  injury  therefrom,  and  upon  such  verdict  entered 
judgment  for  the  defendant. 

Before  Taft  and  Lurton,  Circuit  Judges,  and  Thompson,  Dis- 
trict Judge. 

Taft,  Circuit  Judge  (after  stating  the  above  facts)  :  The 
sole  question  in  the  case  is  whether  the  statute  requiring  defend- 
ant railway,  on  penalty  of  a  fine,  to  block  its  guard  rails  and 
frogs,  changes  the  rule  of  liability  of  the  defendant,  and  relieves 
the  plaintiff  from  the  effect  of  the  assumption  of  risk  which  would 
otherwise  be  implied  against  him.  We  have  already  had  occasion 
to  consider  in  a  more  or  less  direct  way  the  effect  of  the  statute. 
Raihvay  Co.  v.  Van  Home,  16  C.  C.  A.  182,  69  Fed.  139;  Raikvay 
Co.  V.  Craig,  19  C.  C.  A.  631,  73  Fed.  642.  In  these  cases  we  held 
that  the  failure  on  the  part  of  a  railway  company  to  comply  with  the 
statute  was  negligence  per  se.  A  further  consideration  of  the  stat- 
ute confirms  our  view.     The  intention  of  the  legislature  of  Ohio  was 


'  See  the  dissenting  opinion  of  Lord  Esher,  M.  R.,  in  Thomas  v.  Quarter- 
vtaine,  L.  R.  18  Q.  B.^D.  685  (1887),  p.  687,  and  his  opinion  in  Yarmouth  v. 
France,  19  Q.  B.  D.  647  (1887).  p.  649,  in  which  he  appears  to  regard  the 
Employers'  Liability  Act  of  1880  as  imposing  new  statutory  duties  upon  the 
master  for  the  servant's  protection ;  and  see,  also,  20  Harv.,  pp.  99  and  100. 


NARRAMORE  V.   C.  C.  C".  ^:  ST.  L.  RV.  CO.  I41 

to  protect  the  employes  of  railways  from  injur}^  from  a  very  frequent 
source  of  danger  by  compelling  the  railway  companies  to  adopt  a 
well-known  safety  device.  It  was  passed  in  pursuance  of  the  police 
power  of  the  state,  and  it  expressly  provided,  as  one  mode  of  en- 
forcing it,  for  a  criminal  prosecution  of  the  delinquent  companies. 
The  expression  of  one  mode  of  enforcing  it  did  not  exclude  the  oper- 
ation of  another,  and  in  many  respects  more  efficacious,  means  of 
compelling  compliance  with  its  terms,  to  wit,  the  right  of  civil  action 
against  a  delinquent  railway  company  by  one  of  the  class  sought  to 
be  protected  by  the  statute  for  injury  caused  by  a  failure  to  comply 
wnth  its  requirements.^ 

In  this  case  there  can  be  no  doubt  that  the  act  was  passed  to 
secure  protection  and  a  newly-defined  right  to  the  employe.  To  con- 
fine the  remedy  to  a  criminal  proceeding  in  which  the  fine  to  be  im- 
posed on  conviction  was  not  even  payable  to  the  injured  employe 
or  to  one  complaining,  would  make  the  law  not  much  more  than  a 
dead  letter. 

Do  a  knowledge  on  the  part  of  the  employe  that  the  company 
is  violating  the  statute,  and  his  continuance  in  the  service  there- 
after without  complaint,  constitute  such  an  assumption  of  the  risk 
as  to  prevent  recovery?  The  answer  to  this  question  is  to  be  found 
in  a  consideration  of  the  principles  upon  which  the  doctrine  of  the 
assumption  of  risk  rests.  If  one  employs  his  servant  to  mend  and 
strengthen  a  defective  staircase  in  a  church  steeple,  and  in  the  course 
of  the  employment  part  of  the  staircase  gives  way.  and  the  servant 
is  injured  or  killed,  it  would  hardly  be  claimed  that  the  master  was 
wanting  in  care  towards  the  servant  in  not  having  the  staircase 
which  fell  in  a  safe  condition.  Why  not?  Because,  even  if  no  ex- 
press communication  is  jiad  upon  the  subject,  the  servant  must 
know,  and  the  master  must  intend,  that  the  dangers  necessarily  in- 
cident to  the  employment  are  to  be  at  the  risk  of  the  servant,  who 
may  be  presumed  to  receive  greater  compensation  for  the  work  on 
account  of  the  risk.  The  foregoing  is  an  extreme  case,  perhaps,  but 
it  fairly  illustrates  the  principle  of  assumption  of  risk  in  the  rela- 
tion of  master  and  servant.  Assumption  of  risk  is  a  term  of  the 
contract  of  employment,  express  or  implied  from  the  circumstances 
of  the  employment,  by  which  the  servant  agrees  that  dangers  of 
injury  obviously  incident  to  the  discharge  of  the  servant's  duty  shall 
be  at  the  servant's  risk.  In  such  cases  the  acquiescence  of  the  serv- 
ant in  the  conduct  of  the  master  does  not  defeat  a  right  of  action 
on  the  ground  that  the  servant  causes  or  contributes  to  cause  the 
injury  to  himself;  but  the  correct  statement  is  that  no  right  of  ac- 
tion arises  in  favor  of  the  servant  at  all.  for,  under  the  terms  of  the 
employment,  the  master  violates  no  legal  duty  to  the  servant  in  fail- 
ing to  protect  him  from  dangers  the  risk  of  which  he  agreed  ex- 
pressly or  impliedly  to  assume.  The  master  is  not.  therefore,  guilty 
of  actionable  negligence  towards  the  servant.  This  is  the  most  rea- 
sonable explanation  of  the  doctrine  of  assumption  of  risk,  and  is 


»See  accord:    Stehle  v.  Jaeger  Co.,  220  Pa.  617  (1907).  with  which  com- 
pare Mack  V.  Wright,  ante,  p.  186. 


142 


APPENDIX. 


well  supported  by  the  judgments  of  Lord  Justices  Bowen  and  Fry 
in  the  case  of  Thomas  v.  Qttartermaine,  i8  Q.  B.  Div.  685,  695.  See, 
also,  language  of  Lord  Watson  in  Smith  v.  Baker  (1891)  App.  Cas. 
325,  and  O'Malley  v.  Gaslight  Co.,  158  Mass.  135,  32  N.  E.  11 19.  It 
makes  logical  that  most  frequent  exception  to  the  apphcation  of 
doctrine  by  which  the  employe  who  notifies  his  master  of  a  defect 
in  the  machinery  or  place  of  work,  and  remains  in  the  service  on  a 
promise  of  repair,  has  a  right  of  action  if  injury  results  from  the 
defect  while  he  is  waiting  for  the  repair  of  the  defect,  ana  has  rea- 
sonable ground  to  expect  it. 

From  the  notice  and  the  promise  is  properly  implied  the  agree- 
ment by  the  master  that  he  will  assume  the  risk  of  injury  pending 
the  making  of  the  repair. 

If,  then,  the  doctrine  of  the  assumption  of  risk  rests  really  upon 
contract,  the  only  question  remaining  is  whether  the  courts  will 
enforce  or  recognize  as  against  a  servant  an  agreement  express  or 
implied  on  his  part  to  waive  the  performance  of  a  statutory  duty  of 
the  master  imposed  for  the  protection  of  the  servant,  and  in  the  in- 
terest of  the  public,  and  enforceable  by  criminal  prosecution.  We 
do  not  think  they  will.  To  do  so  would  be  to  nullify  the  object  of 
the  statute.  The  only  ground  for  passing  such  a  statute  is  found  in 
the  inequality  of  terms  upon  which  the  railway  company  and  its 
servants  deal  in  regard  to  the  dangers  of  their  employment.  The 
manifest  legislative  purpose  was  to  protect  the  servant  by  positive 
law,  because  he  had  not  previously  shown  himself  capable  of  pro- 
tecting himself  by  contract;  and  it  would  entirely  defeat  this  pur- 
pose thus  to  permit  the  servant  "to  contract  the  master  out"  of  the 
statute.-  It  would  certainly  be  novel  for  a  court  to  recognize  as 
valid  an  agreement  between  two  persons  that  one  should  violate  a 
criminal  statute;  and  yet,  if  the  assumption  of  risk  is  the  term_  of 
a  contract,  then  the  application  of  it  in  the  case  at  bar  is  to  do  just 
that.  The  cases  upon  the  subject  are  by  no  means  satisfactory,  and, 
strange  as  it  may  seem,  but  few  are  in  point.  There  is  one  English 
case  which  entirely  supports  our  conclusion,  and  several  dicta  by 
English  judges  of  like  tenor.  Several  American  cases  on  their  facts 
also  sustain  the  principle,  though  it  must  be  confessed  they  do  not 
very  clearly  state  the  true  ground  of  their  conclusion.  There  is  one 
American  case  which  is  directly  to  the  contrary,  and  possibly  one 
other  ought  so  to  be  regarded.  There  are  several  American  cases 
that  are  said  to  be  opposed  to  our  view,  but  an  examination  of  the 
facts  in  each  will  clearly  distinguish  them  from  the  case  at  bar. 

In  the  case  of  Badddcy  v.  Granville,  19  Q.  B.  Div.  423.  the  ac- 
tion was  for  the  wrongful  death  of  a  miner,  due  to  his  employer's 
violation  of  a  statute,  and  the  defense  of  assumption  of  risk  was  set 
up.  Section  52  of  the  coal  mines  regulation  act  of  1872  required  a 
banksman  to  be  constantly  present  while  the  men  were  going  up  or 


*See  Hand,  J.,  in  Spring  Vallev  Coal  Co.  v.  Patting,  210  111  342  (1904). 
p  253  •  "To  excuse  a  mine  owner  from  the  said  statute  upon  proof  of  tne  fact 
that  the  servant  knew  the  mine  owner  was  violating  the  act  would  be  to  repeal 
the  statute." 


NARRAMORE  V.  C.  C.  C.  &  ST.   L.   RV.   CO.  I43 

down  the  shaft,  but  it  was  the  regular  practice  of  the  defendant,  as 
the  plaintiff's  husband  well  knew,  not  to  have  a  banksman  in  attend- 
ance during  the  night.  The  plaintiff's  husband  was  killed,  in  com- 
ing out  of  the  mine  at  night,  by  an  accident  arising  through  the  ab- 
sence of  a  banksman.  It  was  held  that  the  plaintiff's  intestate  did 
not,  by  continued  service  after  he  knew  of  the  violation  of  the  stat- 
ute, thereby  assume  the  risk  of  danger  therefrom.  The  court  say 
(page  426)  : 

"An  obligation  imposed  by  statute  ought  to  be  capable  of  en- 
forcement with  respect  to  all  future  dealings  between  parties  affected 
by  it.  As  to  the  result  of  past  breaches  of  the  obligation,  people 
may  come  to  what  agreements  they  like,  but  as  to  future  breaches  of 
it  there  ought  to  be  no  encouragement  given  to  the  making  of  an 
agreement  between  A.  and  B.  that  B.  shall  be  at  liberty  to  break  the 
law  which  has  been  passed  for  the  protection  of  A.  If  the  sup- 
posed agreement  come  to  this :  that  the  master  employs  the  servant 
on  the  terms  that  the  latter  shall  waive  the  breach  by  the  master  of  an 
obligation  imposed  on  him  for  the  benefit  of  others  as  well  as  of  him- 
self, such  an  agreement  would  be  in  violation  of  public  policy,  and 
ought  not  to  be  listened  to." 

The  judges  deciding  the  case  of  Thomas  v.  Quartcrmaine,  i8  Q. 
B.  Div.  685,  696,  703,  had  afifirmed  the  view  that  assumption  of  risk 
did  not  apply  to  the  neglect  of  a  specific  statutory  duty  imposed  for 
the  benefit  of  a  class,  but  it  was  not  the  case  before  them.  They  said 
that  the  case  of  Clarke  v.  Holmes,  y  Hurl.  &  N.  937,  6  Hurl.  &  N. 
349,  proceeded  on  this  ground,  though  it  is  difficult  to  find  the  ground 
stated  in  the  opinions.  Durant  v.  Mining  Co.,  97  Mo.  62,  10  S.  W. 
484;  Grand  v.  Railroad  Co.,  83  Mich.  56^,  47  N.  W.  837;  Coal  Co. 
V.  Taylor,  81  111.  590;  and  Boyd  v.  Coal  Co.  (Ind.  App.)  50  N.  E. 
368, — were  all  cases  wheVe  assumption  of  risk  would  have  been  a 
complete  defense  if  applicable  in  case  of  a  failure  by  the  master  to 
discharge  a  statutory  duty  to  the  servant,  and  the  latter's  express  or 
implied  acquiescence  therein;  and  yet  the  servant  was  given  judg- 
ment. The  reasons  stated  in  some  of  these  cases  for  the  conclusion 
are  not  entirely  satisfactory,  and  in  the  cases  from  Illinois  and  In- 
diana no  distinction  is  made  between  the  doctrine  of  assumption 
of  risk  and  of  contributory  negligence,  but  they  are  all  authorities 
on  their  facts  for  our  conclusion.  The  case  of  Knislcy  v.  Pratt,  148 
N.  Y.  382,  42  N.  E.  986,  however,  presented  the  precise  question  for 
decision,  and  the  court  of  appeals  held  expressly  that  a  servant,  by 
continuing  in  the  employment  of  a  master  who  is  violating  a  statute 
passed  to  protect  the  servant,  does  assume  the  risk  of  danger  from 
such  violation,  and  cannot  make  it  the  ground  of  recovery.  This  is 
followed  by  the  gircuit  court  of  appeals  for  the  Second  Circuit  in 
a  New  York  case.  Carf^et  Co.  v.  O'Kecfe,  25  C.  C.  A.  220,  79  Fed. 
9CX).  The  Court  of  Appeals  of  New  York,  in  Huda  v.  Glucose  Co., 
154  N.  Y.  474,  482,  48  N.  E.  897.  does  not  treat  the  question  decided 
in  the  Knisley  Case  as  controlling  the  case  of  servants  acquiescing 
in  and  assuming  the  risk  of  a  violation  of  a  fire-escape  statute  by 
their  master,  and  the  court  declined  to  decide  it.  The  decision  in 
the  Knisley  Case  is  largely  based  on  the  decision  of  O'Maley  v.  Gas- 


144 


APPENDIX. 


light  Co.,  158  Mass.  135,  32  N.  E.  11 19,  and  Goodridgc  v.  Washing- 
ton Mills  Co.,  160  Mass.  234,  35  N.  E.  484.  We  think  the  learned 
Court  of  Appeals  of  New  York  failed  to  observe  that  the  O'Maley 
and  Goodridge  Cases  were  not  suits  under  a  statute  defining  and  en- 
joining a  specific  duty  of  a  master  for  the  protection  of  servants,  but 
were  suits  under  an  employer's  liability  act,  which  relieved  the  serv- 
ant from  the  burden  of  certain  defenses  by  the  master  in  suits  for 
injury  sustained  by  him  while  in  his  master's  employ,  but  did  not 
attempt  to  change  the  master's  duty  to  the  servant,  or  to  change 
the  standard  of  negligence  between  them  as  that  was  fixed  at  com- 
mon law.^  Hence  it  was  held  by  the  supreme  judicial  court  of 
Massachusetts  that  the  doctrine  of  assumption  of  risk  applied  to 
suits  under  the  statute  as  at  common  law,  and  Thomas  v.  Quartcr- 
maine,  18  Q.  B.  Div.  685,  which  was  also  a  suit  under  an  employer's 
liability  act,  was  much  relied  on.  And  yet  in  Thomas  v.  Qiiartcr- 
maine,  as  we  have  seen,  the  two  lord  justices,  forming  the  majority 
deciding  the  case,  expressly  pointed  out  that  in  a  suit  under  a  statute 
positively  fixing  a  standard  of  duty  the  doctrine  of  assumption  of 
risk  could  not  be  applied.  The  distinction  between  the  employer's 
liability  act  and  acts  for  the  protection  of  servants  in  the  nature 
of  police  legislation,  like  the  act  under  consideration,  is  clearly 
shown  in  Griffiths  v.  Earl  of  Dudley,  9  Q.  B.  Div.  357,  where, 
though  the  court  held  that  a  servant  might  "contract  the  employer 
out"  of  liability  under  the  former  act,  it  was  said  that  this  could  not 
be  done  in  respect  of  a  liability  arising  under  a  statute  like  the  one 
at  bar,  passed  for  the  protection  of  servants.*  The  Knisley  Case, 
which,  in  our  judgment,  was  wrongly  decided,  and  many  others  in 
which  a  right  conclusion  was  reached,  seem  to  us  to  confuse  an 
agreement  to  assume  the  risk  of  an  employment,  as  it  is  known  to 
be  to  the  servant,  and  his  contributory  negligence.  That,  under  cer- 
tain circumstances,  the  one  sometimes  comes  very  near  the  other, 
and  cannot  easily  be  distinguished  from  the  other,  rnay  be  conceded ; 
but  in  most  cases  there  is  a  broad  line  of  distinction,  and  it  is  so 
in  this  case.  For  years  employes  worked  in  railroad  yards  in  which 
blocks  were  not  used,  and  yet  no  one  would  charge  them  with  neg- 
ligence in  so  doing.  The  switches  and  rails  were  mere  perils  of  the 
employment.  Assumption  of  risk  is  in  such  cases  the  acquiescence 
of  an  ordinarily  prudent  man  in  a  known  danger,  the  risk  of  which 
he  assumes  by  contract.     Contributory  negligence  in  such  cases  is 

'  Such  is  also  Birmingham,  etc.,  Ry.  Co.  v.  Allen,  99  Ala.  359  (1893). 

*The  distinction  drawn  in  Baddelcy  v.  GravUle  is  between  acts  such  as 
the  Employers'  Liability  Act  of  1880,  which  are  passed  solely  for  the  servant^s 
private  benefit  and  are  intended  to  confer  upon  him  a  merely  personal  privi- 
lege by  removing  from  him  certain  disabilities,  under  which  he,  at  common 
law,  labored,  and  those  acts  where  the  State's  interest  in  the  enforcement 
of  the  precaution  imposed  on  the  master  and  the  consequent  security  of  the 
servant  is  clearlv  shown,  as  (usually  but  probably  not  exclusively)  by  the 
imposition  of  a  p'enalty  for  its  breach  thus  marking  such  breach  as  an  offense 
against  the  State  and  securing  to  the  State  the  ability  to,  itself  if  necessary, 
enforce  obedience  to  the  act.  In  the  first  case  the  beneficiary  can  waive  his 
purely  private  privilege,  in  the  second  he  cannot  sanction  conduct  declared  tG- 
be  detrimental  to  the  State. 


NARRAMORI-:  Z'.  C.  C.  C.  &•  ST.  L.  RY.  CO.  145 

that  action  or  nonaction  in  disregard  of  personal  safety  by  one  who, 
treating  the  known  danger  as  a  condition,  acts  with  respect  to  it 
without  due  care  of  its  consequences.  The  distinction  has  been 
recognized  by  the  supreme  court  of  the  United  States.  In  Railway 
Co.  V.  O'Brien,  i6i  U.  S.  451,  16  Sup.  Ct.  618,  the  court  said: 

"The  second  instruction  was  properly  refused  because  it  con- 
fused two  propositions, — that  relating  to  the  risks  assumed  by  an 
employe  in  entering  a  given  service,  and  that  relating  to  the  amount 
of  vigilance  that  should  be  exercised  under  given  circumstances." 

In  Hesse  v.  Railroad  Co.,  58  Ohio  St.  167,  169,  50  N.  E.  355, 
Judge  Shauck,  speaking  for  the  supreme  court  of  Ohio,  said: 

"Acquiescenc  with  knowledge  is  not  synonymous  with  contrib- 
utory negligence.  One  having  full  knowledge  of  defects  in  machin- 
ery with  which  he  is  employed  may  yet  use  the  utmost  care  to  avert 
the  dangers  which  they  threaten." 

The  distinction  is  exceedingly  well  brought  out  in  Railzvay  Co. 
V.  Baker,  33  C.  C.  A.  468,  91  Fed.  224,  by  Judge  Woods,  speaking  for 
the  circuit  court  of  appeals  for  the  Seventh  Circuit.  There  the 
action  was  for  damages  against  a  railroad  company  for  injury  sus- 
tained by  reason  of  a  breach  of  a  federal  statute  requiring  the  com- 
pany to  furnish  grab  irons.  The  statute,  out  of  abundant  caution, 
expressly  provides  that  the  continued  service  of  the  employe  with 
knowledge  of  the  breach  of  statutory  duty  by  the  company  should 
not  be  regarded  as  an  assumption  of  the  risk.  The  court  held  that 
this  proviso  did  not  prevent  the  company  from  successfully  main- 
taining the  defense  of  contributory  negligence.  Assumption  of  risk 
and  contributory  negligence  approximate  where  the  danger  is  so  ob- 
vious and  imminent  that  no  ordinarily  prudent  man  would  assume 
the  risk  of  injury  therefrom.  But  where  ^he  danger,  though  present 
and  appreciated,  is  one  "w^hich  many  men  are  in  the  habit  of  assum- 
ing, and  which  prudent  men  who  must  earn  a  living  are  willing  to 
assume  for  extra  compensation,  one  who  assumes  the  risk  cannot 
be  said  to  be  guilty  of  contributory  negligence  if,  having  in  view 
the  risk  of  danger  assumed,  he  uses  care  reasonably  commen- 
surate with  the  risk  to  avoid  injurious  consequences.  One  who 
does  not  use  such  care,  and  who,  by  reason  thereof,  suffers  in- 
jury, is  guilty  of  contributory  negligence,  and  cannot  recover,  be- 
cause he,  and  not  the  master,  causes  the  injury,  or  because  they 
jointly  cause  it.^  Many  authorities  hold  that  contributory  negli- 
gence is  a  defense  to  an  action  founded  on  a  violation  of  statutory 
duty,  and  this  undoubtedly  is  the  proper  view.  Such  is  the  case  of 
Kraiise  v.  Morgan,  53  Ohio  St.  26,  40  N.  E.  886.  where  the  employe, 
in  spite  of  a  warning  from  his  superior,  and  in  the  face  of  the  most 
palpable  danger,  exposed  himself  to  certain  injury,  and  then  sought 
to  hold  his  employer  liable  because  he  had  not  employed  the  statu- 


'  Where,  however,  the  employment  of  children  below  a  certain  age  in  cer- 
tain hazardous  businesses  is  forbidden  by  statute,  it  is  held  that,  since  the 
object  of  the  act  is  to  protect  children  from  the  effect  of  their  youthful  incom- 
petence and  thoughtlessness,  the  contributory  negligence  of  such  a  chdd  does 
not  bar  him  in  an  action  against  his  master,  Lenahan  v.  Pittston  Coal  Co.,  218 
Pa.  311  (1907)  ;  Stehle  v.  Jaeger  Co.,  220  Pa.  617  (1908). 


146  APPENDIX. 

tory  methods  of  protecting  him  from  the  danger.  In  Raikvay  Co. 
V.  Craig,  19  C.  C.  A.  631,  73  Fed.  642,  we  held  that  the  Krause  Case 
was  one  of  contributory  neghgence,  and  followed  it  as  such.  The 
syllabus  confuses  the  difference  between  assumption  of  risk  and 
contributory  negligence,  but  the  syllabus  and  opinion  are,  of  course, 
to  be  restrained  to  the  facts.  The  following  cases,  relied  on  by 
counsel  for  the  railway  company,  were  also  cases  of  contributory 
negligence  in  suits  for  violation  of  specific  statutory  duty:  Coal  Co. 
V.  Estievenard,  53  Ohio  St.  43,  40  N.  E.  725 ;  Coal  Co.  v.  Muir,  20 
Colo.  320,  38  Pac.  378 ;  Holum  v.  Raihvay  Co.,  80  Wis.  299,  50  N. 
W.  99;  Grand  v.  Railroad  Co.,  83  Mich.  564,  47  N.  W.  837;  and 
Taylor  v.  Manufacturing  Co.,  143  Mass.  470,  10  N.  E.  308.  In  the 
last  two  cases  the  distinction  between  contributory  negligence  and 
assumption  of  risk  is  clearly  referred  to. 

For  the  reasons  given,  we  think  the  court  below  was  in  error  in 
holding  that  the  plaintiff  assumed  the  risk  of  injury  from  the  failure 
of  the  defendant  to  comply  with  the  statute  passed  for  his  protec- 
tion, and  that  the  case  should  have  been  submitted  to  the  jury  on  the 
issue  whether,  assuming  the  unblocked  guard  rails  and  frogs  as 
a  condition  of  the  situation,  he  used  due  cire  to  avoid  injury  there- 
from. Judgment  reversed,  at  costs  of  the  defendant,  with  directions 
to  order  a  new  trial.® 


'^Accord:  Fitzwater  v.  Warren,  206  N.  Y.  355  (1912),  overruling  Kinsley 
V.  Pratt;  Spring  Valley  Coal  Co.  v.  Patting,  210  111.  342  (1904);  Green  v. 
American  Car,  etc.,  Co.,  163  Ind.  135  (1904)  ;  Swick  v.  Aetna  Cement  Co., 
147  Mich.  454  (1907)  ;  Durant  v.  Coal  Co.,  97  Mo.  62  (1888)  ;  Valjago  v.  Car- 
negie Co.,  226  Pa.  514  (1910)  ;  Hall  v.  West  &  Slade,  39  Wash.  447  (1905), 
Root,  J.,  dissenting  in  an  elaborate  opinion;  Welsh  v.  Barber  Asphalt  Co.,  167 
Fed.  465  (C.  C.  A.  9th  Circ,  1909)  ;  West  v.  Bay-Held  Mill  Co.,  144  Wis.  106 
(1910),  in  which  it  was  held  that  this  is  so,  though  the  plaintiff,  who  kne\7 
that  the  required  guard  had  been  displaced,  did  not  trouble  himself  to  report 
the  matter. 

Contra:  Marshall  v.  Norcross,  191  Mass.  568  (1906)  ;  Anderson  v.  Nelson 
Lumber  Co.,  67  Minn.  79  (1896)  ;  Rase  v.  R.  R.,  107  Minn.  260  (1909)  ;  Lan- 
glois  V.  Dunne  Mills,  25  R.  I.  645  (1903)  ;  Helmke  v.  Thilmany,  107  Wis.  216 
(1900)  ;  St.  Louis  Cordage  Co.  v.  Miller,  ante  p.  455;  in  Gillin  v.  R.  R.,  93 
Me.  80  (1899),  sometimes  cited  as  contra,  the  question  did  not  arise  nor  was  it 
discussed,  the  point  decided  being  that  the  statute  alleged  to  have  been  broken 
was  not  obligatory  upon  the  defendant.  In  Denver,  etc.,  R.  R.  v.  Norgate,  141 
Fed.  247  (C.  C.  A.  8th  Circ,  1906),  the  court,  having  adopted  the  view  that 
assumption  of  risk  does  not  arise  out  of  an  implied  agreement  in  the  contract 
between  the  parties,  feel  driven  thereby  to  hold  that  the  servant  assumes  the 
risk  of  the  open  violation  of  a  statute  passed  for  his  protection,  but  compare 
Britton  v.  Great  Western  Cotton  Co.,  ante,  p.  487-  Where  the  servant  knows 
of  the  risks  created  by  the  master's  breach  of  an  ordinance,  it  is  held  in  M.  K 
&  T.  R.  R.  v.  Goss,  131  Tex.  Civ.  App.  300  (1903),  that  he  does  not  assume 
the  risk  thereof;  contra:  Martin  v.  R.  R.,  118  Iowa,  148  (1902),  and  see  ^antp 
v.  R.  R.,  124  Iowa,  238  (1904). 


INDEX  TO  APPENDIX  A 

[References  are  to  Pages. \ 

T 
THE  FELLOW-SERVICE  RULE, 

liability  of  an  employer  for  the  negligence  of  an  employe  when  it  re- 
sults in  injury  to  another  employe,  1. 
when  it  results  in  injury  to  a  member  of  the  employe's  household  or 
guest  therein,  11. 

to  a  person,  taking  part  in  his  service,  not  under  contract  Imt  as 

a  volunteer,  15. 
to  an  employe  after  working  hours  and  outside  the  employer's 

premises,  17. 
to  an  employe  of  another  employer,  20. 
to  an  employe  whose  work  does  not  bring  him  into  contact  with 

the  negligent  employe,  25,  28. 
to  an  employe  himself  under  the  control  and  direction  of  the 
negligent  employe,  31. 

THE  MASTER'S  DUTY  TO  HIS  SERVANT, 
EngHsh  common-law  rule,  Z2. 
duty  to  a  volunteer,  35. 
duty  to  employes  as  to  matters  over  which  the  employes  have  deprived 

him  of  all  discretion  and  control,  38. 
American  common-law  rule,  41. 

duty  to  superintend  and  issue  commands,  43,  53. 

liability  for  the  negligence  of  persons  in  exclusive  control 

of  a  branch  or  departnTent,  47,  53. 
personssentrusted  with  providing  safe  system  of  work  and 

making  temporary  changes  therein,   54,  58. 
persons  entrusted  with  the  giving  of  warnings  of  danger, 

58,  61. 
persons  entrusted  with  the  direction  of  others,  64,  66. 
duty  to  employ  sufficiently  competent  servants,  41,  71. 
duty  to  provide  safe  instrumentations  for  work  and  safe  place 
in  which  to  work,  74. 

making  of  tools  or  machinery,  74. 
degree  of  safety  required,  77. 

tools  and  appliances  made  in  course  of  the  work  for  tem- 
porary use  therein,  79,  82. 
inspection  of  tools  and  appliances,  85. 
duty  to  provide  medical  attendance,  board  and  shelter,  87,  88.  91 
admiralty  rule,  87. 

duty  to  rescue  workman  imperiled   in   course   of   employ- 
ment, 90. 
duty  to  warn  young  or  inexperienced   servants,  92,  93. 
negligence  of  fellow  servant  concurring  with  breach  of  employ- 
er's duty,  97. 

147 


148  INDEX    TO    APPENDIX    A. 

[References  are  to  Pages.] 

y 

VOLUNTARY  ASSUMPTION  OF  RISK,  100,  101. 

where  the  employe  is  unable  to  leave  the  service  when  he  discovers  the 

peril,  102. 
where  the  only  alternative  open  to  the  employe  is  to  face  the  danger  or 

leave  his  employment,  106,  125,  127. 
whether  actual  knowledge  of  the  risk  or  mere  opportunity  to  learn  of 

its  existence  is  necessary,  121.  123. 
effect  of  employer's  promise  to  remedy  dangerous  conditions,  135. 
knowledge  of  dangerous  conditions   due  to  employer's   disregard  o* 

statutory  requirements,  138,  139. 


TABLE  OF  CASES  TO  APPENDIX  A 


Abraham   v.    Reynolds;    Pollock,   C.    B. 

in,  15 
B. 

Baird  v.  Pettit  18 

Baltimore  &  O.  Ry.  Co.  v.  Baugh  4S 

Bloyd  V,  Railway  Co.  54 
Britton    v.    The    Great    Western    Cotton 

Co.  139 

Burns  v.   Delaware  &  Atlantic  Tel.   Co.  124 


c. 


Chicago  &  Alton  R.  R.  Co.  ■;•.  Caroline 
May,  Admx.  65 

Chicago  &  Northwestern  Ry.  Co.  '•.  Mo- 
randa,  Admx.  29 

Choctaw,  Oklahoma  &  Gulf  R.  R.  Co. 
V.  McDade  122 

Church  V.  Chicago,  M.  &  St.  P.  Ry.  Co.     36 

Crispin  v.  Benjamin  T.   Babbitt  46 


D. 


Darrigan  v.  New  York  &  New  England 
R.  Co.  55 

Dougherty  v.  West  Superior  Iron  & 
Steel  Co.  ^         126 

Dynen  v.  Leach;  Bramwell,  B.,  and 
Pollock,  C.  B.  in,  102 


E. 
Eason  v.  S.  &  E.  T.  Ry.  Co. 

F. 
Farmer  v.  Kearney 
Farwell  v.  Boston  &  Worcester  R.  Corp. 

G. 

Gittens  V.  William  Porter  Co. 
Grizzle  v.  Frost 

II. 


16 


Hayden  v.  Smithville  Mfg.  Co. ;  Ells- 
worth, J.  in,  '  103 

Hunn  V.  Michigan  Cent.  R.  R.;  Champ- 
lin,  J.  in,  59 

Hyatt  V.  The  Hannibal  &  St.  J.  Ry. 
Co.;  Ellison,  J.  in,  89 


PACE 

Johnson   ''.   Lindsay  &  Co.  21 
M. 

McElligott,   Admx.   f.   Randolph  42 

Maine   &    New    Hampshire   (iranite  Co. 

I'.   Hachey  59 

Moore   i'.    Dublin   Cotton    Mills  62 

Murphy  r.   Boston  &  A.   U.   Co.  75 


N. 


Narramore    ;■.    Cleveland,    C.    C.    &    .St. 

L.   Ry.   Co.  140 

Nord   Deutcher  Lloyd  Steamship  Co.  f. 

Ingebregsten  83 

O. 

Ohio   &-    Mississippi    Ry.    Co.    v.    Early, 
Adm.  92 

P. 

Paulmier,  Admr.  z:  Eric  R.  R.  Co.  98 

Priestley   i\    Fowler  1 

R. 

Reiser  v.  Pennsylvania  Co.  72 

Ricks  I'.  I'lynn  68 


St.  Louis  Cordage  Co.  r.  Miller  107 

Scarff  r.  Metcalf;  Finch,  J.  in,  88 

Schlitz  r.  Pabst  Brewing  Co.  136 

Skipp  f.   Eastern  Counties  Ry.  Co.  101 

Smith  r.  Baker  128 


The  Petrel  26 

Thompson  f.  Hermann  103 

Titus  z:   Bradford,  etc.,  R.  Co.  "8 

U. 

ITnion  Pacific  Ry.  Co.  f.  Daniels  86 

I".   S.   :.   Knowles;   Field,  J.  in,  91 

W. 

Wagner  v.  Jayne  Chemical   Co.  94 

Wilson  f.  Merry  &  Cunningham  3i 


149 


APPENDIX  B 
Workmen's  Compensation  Acts 


In  the  last  few  years  more  than  twenty-five  states  have  passed 
workmen's  compensation  acts.  These  acts  have  either  completely 
or  to  a  large  extent  created  a  new  and  exclusive  liability  on  the 
part  of  the  employer,  a  new  and  exclusive  right  on  the  part  of 
the  employe  suffering  from  injuries  received  in  the  course  of  his 
employment.  Where  such  acts  have  completely  covered  the  entire 
field  of  possible  employment  the  first  part  of  this  Appendix  discuss- 
ing the  common-law  liability  of  a  master  to  his  servant  is  no  longer 
of  practical  importance. 

In  many  states,  however,  the  acts  are  elective  so  that  many  of 
the  employers  and  employes  do  not  come  within  the  compensation 
sections  of  such  acts.  In  others  only  certain  specified  classes  of 
ultra-hazardous  industries  are  included.  In  others  again,  agricul- 
tural and  domestic  servants  are  included.  In  others  compensation 
is  only  provided  for  employes  in  establishments  employing  more 
than  a  specified  number  of  workmen.  In  these  states,  therefore,  it 
is  necessary  for  the  student  to  study  both  the  common-law  liability 
of  the  employer  toward  his  employe  and, the  liabilities  that  are  im- 
posed upon  him  by  such  ^ability  acts. 

These  acts  vary  greatly  in  many  particulars : 

(i)   Some  include  all  employments,  some  include  only  a  part 

thereof, 

(2)  A  few  are  compulsory,  the  majority  are  elective. 

(3)  While  they  all  aim  to  give  to  the  injured  employe  and  to 
the  dependents  of  those  who  are  killed  a  definite  percentage  of  such 
employe's  wages  for  a  fixed  period  of  time,  they  differ  both  as  to  the 
percentage  of  wages  given  and  in  the  length  of  time  for  which  such 
compensation  is  to  be  paid. 

(4)  They  differ  in  procedure  by  which  the  right  of  compensa- 
tion is  to  be  decided  in  case  of  dispute  and  the  tribunal  which  is  to 
pass  upon  contested  claims. 

(5)  They  differ  in  the  manner  in  which  the  compensation  is 
to  be  secured. 

(6)  They  differ  in  their  definitions  of  the  injuries  which  are 
to  be  the  subject  of  compensation  and  the  conditions  which  deter- 
mine the  existence  of  the  right  to  compensation  in  specific  cases. 

(7)  They  differ  as  to  the  effect  upon  the  injured  employe's 
right  to  compensation  of  his  own  misconduct  contributing  to  bring 
about  the  injury. 

(i)    In  some  few  States  all  employments  are  covered.    In  some 

I 


APPENDIX. 


Others,  including  New  York,  the  acts  whether  elective  or  compul- 
sory apply  only  to  a  specified  list  of  ultra-hazardous  employments, 
though  some  of  these  acts  give  to  a  state  board  the  power  to  include 
employments  not  specified  in  the  act  within  its  operation  if  in  their 
opinion  they  are  ultra-hazardous.  In  the  majority  of  states  farm 
and  domestic  employes  are  excluded  from  the  benefits  of  compen- 
sation, while  in  a  number  compensation  is  only  provided  for  those 
employed  in  establishments  in  which  more  than  a  specified  number 
of  employes  are  employed. 

(2)  Compulsory  acts,  as  their  name  implies,  require  all  em- 
ployers of  the  specified  class  to  pay  compensation  provided  irre- 
spective of  any  consent  on  their  part  or  the  part  of  their  employes. 
Elective  acts,  on  the  other  hand,  take  away  from  the  employer  the 
benefit  of  the  defenses  of  assumption  of  risk,  of  the  fellow-servant 
doctrine  and  in  whole  or  in  part  the  benefit  of  the  defense  of  con- 
tributory negligence,  and  provide  that  if  the  employe  agrees  to  ac- 
cept as  his  exclusive  remedy  such  compensation,  the  employer  may, 
by  agreeing  to  pay  compensation  in  accordance  with  the  schedules 
contamed  in  the  act,  escape  the  common-law  liability  so  enlarged. 
In  some  acts  the  acceptance  is  assumed  in  the  absence  of  express 
dissent.  In  others  the  compensation  plan  must  be  accepted  by 
the  positive  act  of  one  or  both  parties  and  in  some  of  the  acts  the 
employer  can  only  accept  by  taking  out  insurance  against  the  lia- 
bility which  he  assumes  under  the  compensation  plan. 

(3)  It  would  be  idle  to  attempt  to  enter  into  a  discussion  of 
the  schedules  of  the  percentages  of  wages  given  under  the  various 
acts,  they  dififer  so  greatly  in  different  jurisdictions.  The  student  in 
each  jurisdiction  must  find  from  his  own  particular  state  Act  the  per- 
centages and  periods  provided  therein. 

(4)  The  procedure  provided,  though  differing  in  its  character, 
is  in  general  simple,  speedy  and  free  from  technical  difficuUies. 
Here  again  the  student  must  ascertain  for  himself  the  procedure  in 
force  in  his  own  jurisdiction.  In  so  far  as  the  question  is  one  for 
study  in  a  law  school  course,  it  falls  within  the  course  in  Legal  Pro- 
cedure or  Practice  rather  than  within  the  field  of  the  law  of  Torts. 
The  great  majority  of  the  acts  create  a  commission  as  the  tribunal 
which  is  to  pass  upon  contested  claims,  the  finding  of  such  com- 
mission upon  questions  of  fact  is  conclusive  but  an  appeal  is  allowed 
to  the  courts  upon  matters  of  law.  In  Minnesota,  Rhode  Island  and 
a  few  other  states  the  English  procedure  has  been  adopted  and  the 
right  to  compensation  is  enforced  by  an  action  brought  in  the  com- 
mon pleas  courts  of  those  states.  ... 

(5)  In  the  great  majority  of  states  the  employer  is  made  di- 
rectly liable  for  the  compensation  provided  in  the  act,  though  in 
some  of  these  he  is  required  to  take  out  insurance  against  such  lia- 
bility or  to  satisfy  the  state  commission  that  he  is  financially  able  to 
carry  the  liability  himself.  In  others  the  employer  is  required  to 
insure  in  a  state  insurance  fund,  which  thereafter  is  solely  liable  for 
the  payment  of  the  compensation  provided  in  the  acts. 

This  is  a  matter  of  policy  and  here  again  the  student  r.i  each 


APPENDIX.  3 

jurisdiction  must  ascertain  for  himself  the  pohcy  adopted  by  his 
own  legislation. 

In  (6)  and  (7)  only  do  compensation  acts  present  any  problems 
which  fall  within  or  even  approach  the  field  of  Tort  law. 

Therefore,  the  cases  collected  in  this  part  of  the  Appendix  deal 
with, 

(i)   the  language  used  in  defining  the  injury; 

(2)  the  language  used  in  the  various  acts  in  defming  the  cir- 
cumstances under  which  such  injury  must  be  received  in  order  that 
the  sufferer  may  be  entitled  to  compensation  therefor ; 

(3)  the  construction  put  upon  the  phrase  used  to  define  the 
nature  of  the  misconduct  which  will  bar  an  injured  employe  from 
recovering  compensation ; 

(4)  and  last,  cases  dealing  with  the  interpretation  of  the  term 
"casual  employment,"  a  term  used  in  most  if  not  all  acts  to  indicate 
a  class  of  persons  excluded  from  the  benefits  therein  ])rovided. 

While  the  acts  now  in  force  in  the  United  States  differ  largely 
in  the  various  particulars  hereinbefore-mentioned,  and  while  some 
have  adopted  the  system  of  compensation  in  force  in  Germany, 
others,  those  in  force  in  England,  and  others  against  those  in  force 
in  other  European  countries,  and  while  the  system  of  administra- 
tion and  procedure  is  in  some  cases  copied  from  those  existing  in  the 
one,  and  in  others  those  existing  in  the  other  European  countries, 
yet  all  unite  in  copying  literally  or  in  part  the  definitions  contained 
in  the  English  Workmen's  Compensation  Acts  of  1897  and  1906. 
Therefore  the  sections  in  the  English  acts  containing  these  defini- 
tions will  be  used  as  a  starting-point.  And  as  the  American  acts 
have  not  been  in  force  so  long  as  to  hav^  created  any  considerable 
body  of  precedence,  the  cases  given  will  be  in  the  main  those  decided 
by  British  Courts  construing  and  applying  the  provisions  of  the 
British  Act  and  the  Colonial  Acts  which  are  themselves  copies 
thereof. 


CHAPTER  I. 

Personal  Injury  by  Accident  Arising  Out  of  and  in  the  Course  of 

the  Employment.^ 


SECTION  1. 

'Personal  Injury  by  Accident."^ 

(a)   "Personal  injury." 


ISMAY,  IMRIE  &  CO.  v.  WILLIAMSON. 

House  of  Lords.  1908.    L.  R.  1908,  A.  C.  437. 

In  July,  1907,  the  respondent's  husband  died  while  employed 
as  a  trimmer  on  the  appellant's  steamship  at  sea  in  the  Atlantic. 
In  an  arbitration  held  in  the  county  court  of  the  county  of  the  city 
of  Belfast  an  entry  in  the  log-book  was  put  in  stating  that  "at 
I  P.  M.  the  trimmer  was  brought  on  deck  suffering  from  heat- 
stroke, temperature  106:  he  was  placed  in  hospital  for  treatment; 
ice  was  applied  and  the  temperature  reduced  to  loi,  when  he  be- 
came very  violent,  having  to  be  held  down.  At  3  P.  M.  he  died ; 
cause  of  death  was  heat-stroke  and  exhaustion."  The  medical  evi- 
dence is  given  in  the  judgments  of  Lord  Ashbourne  and  Lord  Mac- 
naghten. 

^"If  in  any  employment  personal  injury  by  accident  arising  out  of  and 
in  the  course  of  the  employment  is  caused  to  a  workman,  his  employer  shall, 
subject  as  hereinafter  mentioned,  be  liable  to  pay  compensation  in  accord- 
ance with  the  First  Schedule  of  the  Act."  Sec.  1  (1)  of  the  British  Work- 
men's Compensation  Act  of  1906,  6  Edw.  VII,  ch.  58,  L.  R.  1906,  "Statutes" 
p.  326.  For  a  discussion  of  the  British  decisions  construing  and  applymg 
this  section,  see  the  editor's  article  on  "A  Problem  in  the  Drafting  of  Work- 
men's Compensation  Acts,"  25  Harv,  L.  R.  328,  401,  517  (1912),  and  see  also 
his  article  on  "Some  Recent  Decisions  Under  the  Workmen's  Compensation 
Acts  of  Massachusetts  and  Michigan,"  14  Col.  L.  R.  563,  648  (1914).  See, 
however,  Sec.  301  of  the  Workmen's  Compensation  Act  of  1915  of  Pennsyl- 
vania. 

*This  exact  phrase  is  used  in  the  Workmen's  Compensation  Acts  or 
Arizona,  Minnesota,  Nebraska,  New  Jersey,  Oregon  and  Rhode  Island.  ^^  The 
words  "personal  injuries"  without  the  qualifying  phrase  "by  accident  are 
used  in  the  acts  of  California,  Connecticut,  Iowa,  Kansas,  Louisiana,  Massa- 
chusetts, Michigan,  Nevada,  Ohio  and  Texas.  The  phrase  "accidental  _  in- 
juries" is  used  in  the  Illinois  Act,  the  phrase  "accidental  personal  injuries 
is  used  in  the  Maryland  and  New  York  Acts,  in  Washington  (Sec  5)  every 
workman  who  shall  be  injured"  is  given  compensation,  while  in  Wisconsin 
(Sec.  2394-3),  liability  for  compensation  exists  "for  any  personal  injury 
accidentally  sustained"  by  an  employe  who  "at  the  time  of  the  accident  is 
"performing  service,"  etc. 


ISMAY,  IMRIE  &  CO.  V.  WILLIAMSON.  5 

The  Court  of  Appeal  in  Ireland  (Sir  Samuel  Walker  L.  C. 
and  Fitzgibbon  L.  J.,  Holmes  L.  J.  dissenting)  affirmed  the  decision 
of  the  county  court  judge,  who  held  as  ?.  fact  that  death  was  caused 
by  heat  coming  from  the  boiler;  that  it  was  an  accident  within  the 
meaning  of  the  statute;  and  that  the  respondent  was  entitled  to 
compensation.    Hence  the  present  appeal. 

Lord  Loreburn,  L.  C.  My  Lords,  I  agree  with  the  judgment 
of  the  Court  of  Appeal. 

The  county  court  judge  has  found  that  this  man  died  from  an 
accident.  There  does  not  seem  to  me  reason  for  dissenting  from 
that  view. 

To  my  mind  the  weakness  of  the  deceased  which  predisposed 
him  to  this  form  of  attack  is  immaterial.  The  fact  that  a  man  who 
has  died  from  a  heat-stroke  was  by  physical  debility  more  likely 
than  others  so  to  suffer  can  have  nothing  to  do  with  the  question 
whether  what  befell  him  is  to  be  regarded  as  an  accident  or  not. 

In  the  case  of  Fenton  v.  Thorley,  (1903)  A.  C.  443,  448.  the 
meaning  of  the  word  accident  was  very  closely  scrutinized.  That 
case  stands  as  a  conclusive  authority,  and  I  would  not  depart  from 
it  if  I  could,  nor  need  I  repeat  what  was  there  said.  The  only  ques- 
tion is  of  applying  the  law  there  laid  down  to  the  particular  facts 
of  this  case. 

In  my  view  this  man  died  from  an  accident.  What  killed  him 
was  a  heat-stroke  coming  suddenly  and  unexpectedly  upon  him  while 
at  work.  Such  a  stroke  is  an  unusual  effect  of  a  known  cause,  often, 
no  doubt,  threatened,  but  generally  averted  by  precautions  which 
experience,  in  this  instance,  had  not  taught.  It  was  an  unlooked-for 
mishap  in  the  course  of  his  employment.^  In  common  language,  it 
was  a  case  of  accidental  ^death. 

I  feel  that  in  construing  this  Act  of  Parliament,  as  in  other 
cases,  there  is  a  risk  of  frustrating  it  by  excess  of  subtlety,  which  I 
am  anxious  to  avoid. 

Lord  Ashbourne.  My  Lords,  in  this  case  I  think  that  the  de- 
cision of  the  Court  of  Appeal  in  Ireland  was  correct  and  that  the 
appeal  should  be  dismissed. 

There  is  no  dispute  as  to  the  facts  of  the  case.  He  was  em- 
ployed as  a  trimmer  on  board  the  Majestic.  At  the  time  of  the  ac- 
cident he  was  working  in  a  stokehole  opposite  the  boiler,  he  received 
a  heat-stroke  from  the  rays  of  heat  from  the  boiler  impinging  on 
his  body,  he  became  exhausted,  and  died  in  a  few  hours. 

Was  this  an  accident  arising  out  of  and  in  the  course  of  his 
employment?  With  great  deference  to  those  who  hold  a  contrary 
opinion,  I  can  myself  see  no  room  for  serious  doubt  on  the  subject. 
Everything  was  m  the  course  of  his  employment  and  arising  out  of 
it.  But  for  the  boiler  and  the  heat-stroke,  and  the  speedy  exhaus- 
tion it  caused,  there  would  have  been  no  accident. 

If  the  Act  is  to  be  interpreted  according  to  its  ''ordinary  and 
popular  meaning,"  as  Lord  Halsbury  said  was  right  in  Brintons  v. 
Turvey,  (1905)  A.  C.  233,  would  not  the  generality  of  mankind  say 
that  what  occurred  was  an  injury  caused  by  an  accident? 


5  APPENDIX. 

Although  a  heat-stroke  may  be  called  a  disease,  it  is  in  this 
case,  in  my  opinion,  a  disease  directly  caused  by  an  accident  arising 
out  of  or  in  the  course  of  an  employment,  particularly  dangerous  to 
Williamson,  in  consequence  of  his  weak  state  of  health.  Its  not 
being  scheduled  as  an  industrial  disease  in  the  Act  of  1906  does  not 
afi'ect  the  question,  for  the  Act  expressly  provides  that  "nothing 
shall  affect  the  rights  of  a  workman  to  recover  compensation  in 
respect  of  a  disease  to  which  this  section  docs  not  apply,  if  the  dis- 
ease is  a  personal  injury  by  accident  within  the  meaning  of  the  Act." 
I  do  not  at  all  say  that  all  diseases  arising  out  of  or  in  the  course  of 
employment  should  be  regarded  as  a  personal  injury  by  accident, 
but  I  am  of  opinion  that  under  the  circumstances  of  this  case  and 
its  facts  Williamson  was  killed  by  a  personal  injury  by  accident, 
and  that  the  appellants  are  accordingly  liable. 

In  my  opinion  the  appeal  should  be  dismissed  with  costs. 

Lord  Macnaghten.  My  Lords,  that  the  illness  by  which  the 
deceased  lost  his  hfe  was  one  arising  out  of  and  in  the  course  of  his 
employment  can  not  be  disputed.  But  I  agree  with  Holmes^  L.  J. 
that  it  does  not  come  under  the  description  of  a  "personal  injury 
by  accident."  That  expression  as  it  seems  to  me  would  be  equally 
applicable  or  equally  inapposite  in  the  case  of  an  attack  of  bronchitis 
or  pneumonia  brought  on  by  a  sudden  and  violent  chill  disregarded 
or  neglected  at  the  outset. 

The  work  of  a  trimmer  is  not  heavy  in  itself.  It  is,  no  doubt, 
trying  work,  owing  to  the  heated  atmosphere  of  the  stokehole  where 
trimmers  work,  raking  out  the  ashes  of  the  furnaces.  The  men 
work  in  shifts,  four  hours  on  and  eight  hours  ofif.  The  deceased 
had  no  experience  of  such  work.  He  got  through  two  shifts.  On 
his  third  turn,  after  about  an  hour's  work,  he  had  a  "heat-stroke," 
as  it  is  called.  He  went  on  till  he  dropped  in  a  faint.  He  was  car- 
ried to  the  hospital,  recovered  partially,  then  became  violent,  and 
died  from  exhaustion  two  hours  after  leaving  the  stokehole.  Was 
that  an  injury  by  accident  in  the  ordinary  sense  of  the  expression? 
I  think  not.  The  death  was  due  to  the  physical  state  of  the  work- 
man and  "the  nature"  of  the  employment,  to  use  the  language  of 
section  8,  sub-section  6.  It  was,  I  think,  just  what  anybody  would 
have  expected  who  saw  the  man  and  knew  what  a  trimmer  has  to 
do.  Add  the  fact  that  the  man  was  wholly  inexperienced,  ignorant 
of  what  ought  to  be  done  in  case  of  emergency,  and  the  result  would 
be  a  foregone  conclusion. 

I  should  be  for  allowing  the  appeal.  But  as  your  Lordships 
take  a  different  view,  the  appeal  will,  of  course,  be  dismissed  with 
costs. ^ 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed 
with  costs. 

'  In  Brinton's  Limited  v.  Turvey,  L.  R.  1905,  A.  C.  230,  compensation  was 
granted  to  the  dependents  of  a  workman  who  died  from  anthrax,  a  bacillus 
of  which  alighted  in  his  eye  while  he  was  sorting  infected  wool.  The  Court 
of  Appeals,  L.  R.  1904,  1  K.  B.  328,  laid  great  stress  on  the  fact  that  the 
impact  of  the  germ  in  the  eye  was  a  violation,  though  one  microscopically 


CLOVER,  CLAYTOX  &  CO.  V.  HUGHES. 

(b)  "By  accident." 


CLOVER,  CLAYTON  &  CO.,  LIMITED  v.  HUGHES 
House  of  Lords,  1910.    Law  Reports,  1910,  Appeal  Cases. 

Lord  Loreburn  L.  C.  My  Lords,  in  this  case  a  workman,  suf- 
fering from  an  aneurism  in  so  advanced  a  state  of  disease  that  it 
might  have  burst  at  any  time,  was  tightening  a  nut  with  a  spanner, 
when  the  strain,  quite  ordinary  in  this  work,  ruptured  the  aneurism 
and  he  died.  This  is  a  m.ere  summary  of  the  facts.  They  and  the 
learned  county  court  judge's  conclusions  from  them  are  stated  fully 
in  his  instructive  judgment.  In  what  I  am  about  to  say  I  take  the 
facts  as  he  found  them  in  extenso  and  rely  upon  them. 

This  man  died  from  the  rupture  of  an  aneurism  and  "the  death 
was  caused  by  a  strain  arising  out  of  the  ordinary  work  of  the  de- 
ceased operating  upon  a  condition  of  body  which  was  such  as  to 
render  the  strain  fatal."  Again,  "the  aneurism  was  in  such  an  ad- 
vanced condition  that  it  might  have  burst  while  the  man  was  asleep, 
and  a  very  slight  exertion,  or  strain,  would  have  been  sufficient  to 
bring  about  a  rupture."    These  are  the  findings  and  they  bind  us. 

The  first  question  here  is  whether  or  not  the  learned  judge  was 
entitled  to  regard  the  rupture  as  an  "accident"  within  the  meaning 
of  this  Act.  In  my  opinion  he  was  so  entitled.  Certainly  it  was  an 
"untoward  event,"  It  was  not  designed.  It  was  unexpected  in  what 
seems  to  me  the  relevant  sense,  namely,  that  a  sensible  man  who 
knew  the  nature  of  the  work  would  not  l^ave  expected  it.  I  can  not 
agree  with  the  argument  presented  to  your  Lordships  that  you  are 

small,  of  the  workman's  body.  Later  cases,  however,  draw  no  distinction 
between  cases  where  a  germ  invading  the  body  causes  infection  and  those 
where  disease  is  contracted  in  any  other  way.  So  a  sun-stroke  received  by 
a  sailor  painting  a  vessel  in  a  dry-dock  at  a  tropical  port,  has  been  held  an 
injury  within  the  terms  of  the  act,  Morgan  v.  Zcncida,  25  T.  L.  R.  4A6  (1909), 
3  B.  W.  C.  C.  19;  as  has  kidney  disease  due  to  a  chill  contracted  while  work- 
ing waist  deep  in  water,  Sheeran  v.  Clayton  &  Co.,  44  Ir.  T.  L.  R.  52  (1909), 
3  B.  W.  C.  C.  583;  pneumonia  due  to  chills  similarly  caused.  Jlloa  Coal  Co. 
v.  Drvlie,  1913  Sess.  Cases  (Scotland)  549,  6  B.  W.  C.  C.  398;  Coyle  v.  John 
Watson,  Ltd.,  30  T.  L,  R.  501  (1914  House  of  Lords)  reversing  the  decision 
in  the  Court  of  Sessions,  1913  Sess.  Cases  593;  and  pneumonia  caused  by 
inhalation  of  poisonous  gas,  Kcllx  V.  Aiichcnlcc  Coal  Co.,  Ltd.,  1911  Sess. 
Cases  864,  4  B.  W.  C.  C.  417.  See  however,  M'Millan  v.  Singer  Sewing  Ma- 
chine Co.,  1913,  Sess.  Cases  346,  6  B.  W.  C.  C.  345,  and  the  vigorous  dis- 
senting opinion  of  Lord  Salvesen  in  Alloa  Coal  Co.  v.  Drylie,  supra. 

The  Supreme  Judicial  Court  of  Massacliusetts  has  construed  the  term 
"personal  injury"  used  in  the  Compensation  Act  as  including  disease  as  well 
as  injury  to  the  physical  structure  of  the  body,  Hurle's  Case,  2\7  Mass.  22 
(1914)  ;  JoJmson's  Case,  217  Mass.  388  (1914)  ;  Stone  v.  Traveller's  Insurance 
Co.,  p.  470  of  the  "Report  of  Cases  under  the  Massachusetts  Compensation 
Act  from  June,  1912,  to  June  30,  1913."  The  question  is  left  open  in  Liondale 
Bleach,  etc.,  Works  v.  Riker,  85  N.  J.  L.  426  (1914)  :  Adaws  v.  Acme  JVh.ite 
Lead  Works,  148  N.  W.  485  (1914  Michigan),  the  disease  in  each  case  being 
alleged  to  have  been  caused  by  a  continuous  expos4.ire  to  unsanitary  condi- 
tions during  the  whole  period  of  employment.    See  Eke  v.  Hart  Dyke,  infra. 


8  APPENDIX. 

to  ask  whether  a  doctor  acquainted  with  the  man's  condition  would 
have  expected  it.  Were  that  the  right  view,  then  it  would  not  be  an 
accident  if  a  man  very  liable  to  fainting  tits  fell  in  a  faint  from  a 
ladder  and  hurt  himself. 

Lord  Macnaghten.  My  Lords,  in  this  case  your  Lordships 
have  heard  a  very  able  and  ingenious  argument  upon  the  construc- 
tion of  the  1st  section  of  the  Workmen's  Compensation  Acts.  I 
need  hardly  say  that  it  is  not  from  any  want  of  respect  to  the  learned 
counsel  who  advanced  that  I  pass  that  argument  by.  It  has  been 
disposed  of  already.  It  was  advanced  and  rejected  in  the  case  of 
Fcnton  v.  Thorley,  (1903)  A.  C.  443.  There  the  Court  of  Appeal 
had  held  that  if  a  man  meets  with  a  mishap  in  doing  the  very  thing 
he  means  to  do  the  occurrence  can  not  be  called  an  accident.  There 
must  be,  it  was  said,  an  accident  and  an  injury :  you  are  not  to  con- 
fuse the  injury  with  the  accident.  Your  Lordships'  judgment,  how- 
ever, swept  away  these  niceties  of  subtle  disquisition  and  the  endless 
perplexities  of  causation.  It  was  held  that  "injury  by  accident" 
meant  nothing  more  than  "accidental  injury"  or  "accident,"  as  the 
word  is  popularly  used.  It  is  not  perhaps  quite  accurate  to  say  that  in 
that  case  a  definition  of  the  term  "accident"  was  hazarded.  It  would 
be  more  correct  to  say  that  the  decision  was  that  the  word  "accident" 
was  to  be  taken  in  its  ordinary  and  popular  sense.  Some  of  the 
noble  and  learned  Lords  who  gave  judgment  explained  what  they 
understood  to  be  the  ordinary  meaning  of  the  word,  and  I  can  not 
but  think  that  the  explanations  given,  varying  slightly  in  expression, 
are  substantially  correct. 

The  fact  that  the  man's  condition  predisposed  him  to  such  an  ac- 
cident seems  to  me  to  be  immaterial.  The  work  was  ordinary  work, 
but  it  was  too  heavy  for  him.  It  must  be  taken  on  the  finding  of  the 
learned  county  court  judge  that  the  accident  was  unexpected  by  the 
workman.  It  can  hardly  be  supposed  that  he  intended  to  kill  him- 
self. The  fact  that  the  result  would  have  been  expected,  or  indeed 
contemplated  as  a  certainty,  by  a  medical  man  of  ordinary  skill  if 
he  had  diagnosed  the  case  is,  I  think,  nothing  to  the  purpose.  An 
occurrence  I  think  is  unexpected  if  it  is  not  expected  by  the  man  who 
suffers  by  it,  even  though  every  man  of  common  sense  who  knew  the 
circumstances  would  think  it  certain  to  happen.  All  accidents,  I  sup- 
pose, may  be  divided  into  two  classes ;  those  which  are  due  to  one's 
own  fault,  and  those  which  are  not.  Accidents  due  to  a  man's  own 
fault  are  for  the  most  part  the  result  either  of  inadvertence  or  mis- 
calculation. If  a  man  miscalculates  his  powers  and  so  fails  in  what 
he  attempts  to  do  and,  it  may  be,  injures  himself,  he  has  probably 
plenty  of  friends  who  will  tell  him  (at  any  rate  after  the  event)  that 
they  knew  exactly  what  would  happen.  But  still,  as  it  seems  to  me, 
the  untoward  occurrence  would  popularly  be  called  an  accident. 

I  am  of  opinion  that  the  judgment  appealed  from  is  right,  and 
that  the  appeal  must  be  dismissed  with  costs. 

Lord  Atkinson.  If  the  external  conditions  which  surround 
and  the  external  influences  which  act  upon  a  workman  at  the  time 
he  receives  an  injury  be  the  normal  conditions  and  influences  which 


CLOVER,  CLAYTON  &  CO.  V.  HUGHES.  9 

would  surround  and  act  upon  any  one  engaged  in  the  discharge  of 
the  normal  duties  of  employment  such  as  his,  it  could  not,  I  think, 
be  contended  that  anything  "unlocked  for"  or  "unexpected"  had 
come  to  pass  in  those  conditions  and  inliuences.  And  if  the  physical 
state  of  the  workman  be  such  that  those  acquainted  with  it,  and 
capable  of  forming  an  intelligent  opinion  upon  the  effect  which  those 
influences  would,  under  such  conditions,  produce  upon  him,  regard 
the  injury  as  the  certain  or  highly  probable  consequence  of  their  ac- 
tion, I  fail  to  see  how  the  injury  could  be  regarded  as  an  accident. 

The  death  of  the  deceased  was,  it  appears  to  me,  no  more  an 
accident  than  if,  had  he  been  a  butler,  he  had  died  walking  slowly  up 
the  stairs  of  the  house  in  which  he  served,  or,  had  he  been  a  coach- 
man, he  had  died  while  slowly  mounting  to  his  box.  It  may  possibly 
be  that  it  would  be  better,  in  the  interest  of  workmen,  that  they 
should  be  entitled  to  compensation  for  all  injuries  which  arise  out 
of  and  in  the  course  of  their  employment  however  caused,  though 
that  is  far  from  clear,  since  it  might  result  in  depriving  of  employ- 
ment all  who  were  in  any  way  unsound  or  past  their  prime ;  but 
while  the  word  "accident"  remains  in  the  statute,  force  and  mean- 
ing must  be  given  to  it  in  construing  the  statute,  and,  much  as  one 
must  sympathize  with  the  claimant,  I  for  my  part  am  unable  to  see 
that  anything  which  was  not  normal  and  most  probable,  if  not  cer- 
tain, befell  the  deceased.  I  therefore  think  that  there  was  no  evi- 
dence upon  which  the  county  court  judge,  as  a  reasonable  man. 
could  legitimately  find  as  he  has  found,  and  that  the  appeal  should 
be  allowed.^ 


^The  earlier  cases  required  that  there  must  have  been  something  unusual 
and  unexpected  in  the  external  influences  to  wHch  the  sufferer  was  subjected 
in  the  course  of  his  employ^ient.  No  injury  was  regarded  as  sustained  by 
accident  where  the  workman  was  harmed  while  doing  the  very  work  he  was 
employed  to  do  under  conditions  usual  thereto.  No  compensation  was 
awarded  unless  there  was  some  departure  from  the  ordinary  operation  of 
the  business  or  some  unusual  condition  of  the  plant;  it  was  not  enough  that, 
because  of  some  peculiar  physical  condition  of  the  workman,  permanent  or 
transitory,  known  to  him  or  not  known  to  him,  the  work  which  he  did  not  ex- 
pect to  injure  him,  in  fact  proved  harmful ;  there  must  be  some  factor  external 
to  the  claimant's  physical  condition.  Even  the  most  recent  decisions  of  tlie 
Scottish  Court  of  Sessions  show  a  marked  tendency  toward  the  position 
taken  in  the  English  cases  prior  to  the  decision  in  the  principal  case,  see 
Watson  v.  Brown,  1913  Sess.  Gases  593,  6  P..  W.  C.  C.  416,  reversed  by  the 
House  of  Lords,  30  Times  L.  R.  501  (1914),  and  Kerr  v.  Ritchie,  1913  Sess. 
Cases  613,  6  B.  W.  C.  C.  419. 

The  courts,  however,  were  prone  to  regard  rather  mmute  departures 
from  the  ordinary  course  of  the  employment  as  being  suOicient  to  amount 
to  an  unexpected  external  event.  So  it  was  held  that  a  strain  received  wlnlc 
lifting  a  pile  of  boards  which  had  been  stuck  together  by  ice  and  whose 
removal  thereby  reqiiired  an  unusual  effort  was  an  accident,  Timmins  v.  Leeds 
Forge  Co.,  83  L.  T.  120,  16  T.  L.  R.  521,  2  W.  C.  C.  10  (1900).  And  so  it  was 
held  that  the  claimant  might  recover  compensation  where  his  hand  was  jarred 
by  a  blow  inaccurately  struck  by  a  fellow  workman  on  the  tool  wiiich  the 
claimant  was  holding,  Lloyd  v.  Sugg  &  Co.,  (1900)  1  Q.  B.  481,  486.  2  W. 
C.  C.  5;  the  departure  from  the  usual  operation  of  the  business  might  be 
some  unusual  act  of  the  servant  himself  if  done  in  the  prosecution  of  the 
iDUsiness,  and  this  act  might  be  some  careless  act  of  his  own.— an  uninten- 
tional slip,  or  an  act  intentionally  done  but  whose  results,  owing  to  some 


lO  APPENDIX. 


TRIM  JOINT  DISTRICT  SCHOOL  BOARD  MANAGEMENT 

V.  KELLY. 

House  of  Lords,  1914.    30  Times  L.  R.  453. 

Appeal,  from  the  decision  of  the  Court  of  Appeal  in  Ireland. 

The  respondent  claimed  compensation  as  sole  dependent  for 
the  death  of  her  son.  The  son  was  employed  by  the  appellants  as 
an  assistant  master  in  the  Trim  District  School,  which  was  estab- 
lished as  a  school  for  training  children  of  the  Meath  and  other  union 
workhouses  in  industrial  pursuits..  It  was  his  duty  to  superintend 
the  boys  in  school  and  in  the  playground.  On  February  12,  1912, 
the  boys,  who  were  angry  with  the  master  because  he  had  prevented 
them  from  playing  hockey  in  the  school  yard  and  because  he  had 
caught  one  of  them  stealing,  planned  an  attack  on  him.  They  col- 
lected in  a  shed  attached  to  the  school,  armed  with  hockey  sticks, 
sweeping  brushes,  and  scrubs — the  last  weapon  consisting  of  a  heavy 
block  of  wood  attached  to  a  brush-handle.  The  master  came  down 
from  the  school  and  walked  along  the  shed.  As  he  turned  to  come 
back  one  of  the  boys  struck  him  on  the  head  with  a  scrub  and  an- 
other struck  him  with  a  sweeping  brush,  inflicting  such  severe  in- 
juries that  he  died  on  the  same  day. 

The  County  Court  Judge  held  that  the  assault  was  an  accident 

miscalculation,  were  not  foreseen  or  designed,  Boardman  v.  Scott  &  Whit- 
worth,  (1902)  1  K.  B.  43,  4  W.  C.  C.  1,  where  a  workman  was  required  to 
move  a  beam  from  a  loom  and  in  lifting  it  he  balanced  it  unevenly  upon  his 
shoulder.  In  order  to  get  it  into  a  position  of  equilibrium,  he  gave  it  an  extra 
lift,  the  strain  of  which  lacerated  the  muscles  in  his  side;  it  was  held  that 
this  was  an  injury  by  accident,  the  improper  and  unusual  manner  in  which 
the  workman  himself  had  originally  balanced  the  beam  upon  his  shoulder 
being  taken  to  be  an  unusual  condition  of  the  labor  which  the  servant  had 
not  expected  to  encounter. 

An  injury  is  by  accident,  though  similar  injuries  have  been  previously 
sustained  by  the  claimant  or  his  co-workers  under  similar  conditions,  and 
though  the  recurrence  thereof  is  likely,  if  its  recurrence  at  the  particular 
time  was  not  anticipated  by  the  victim,  Neville  v.  Kelly  Bros.,  etc.,  13  Brit. 
Col.  125  (1907).  In  one  class  of  cases  there  is  a  tendency  to  regard  as  ac- 
cidental injuries  which  the  workman  probably  foresaw  as  very  likely  to 
result  from  some  particular  action  intentionally  undertaken.  _  There  _  are 
cases  where  a  workman  voluntarily  encounters  a  very  serious  risk  of  injury 
in  an  efifort  to  save  his  master's  property  from  injury  or  to  rescue  a  fellow 
workman  from  peril,  and  so,  if  successful,  incidentally  protecting  his  em- 
ployer from  liability  to  make  compensation  or  diminishing  the  amount 
thereof,  Rees  v.  Thomas,  (1899)  1  Q.  B.  1015,  1  W.  C.  C.  9,  workman  injured 
while  trying  to  stop  his  employer's  runaway  horses;  Hapclman  v.  Poole,  25 
T.  L.  R.  155,  2  B.  W.  C.  C.  48  (1908),  menagerie  attendant  killed  while 
trying  to  drive  escaped  lions  back  to  their  cage;  Matthews  v.  Bedzvorth,  1 
W.  C.  C.  124  (County  Ct.,  1899),  miner  killed  in  going  down  shaft,  after 
beinp-  warned  of  danger,  in  order  to  rescue  fellow  miner  overcome  by  choke 
damp;  London  &  Edinburgh  Shipping  B.  v.  Brown,  (1904-1905)  Session 
Cases  488,  7  Fraser  488  (Ct.  Sess.,  1905),  dock  laborer  killed  in  an  attempt 
to  rescue  fellow  worker  overcome  by  noxious  gas  in  the  hold  of  a  vessel 
which  he  was  unloading.  But  see  the  strong  dissent  of  Lord  Kyllachy  m 
the  last  given  case.  In  none  of  these  cases  was  the  injury  inevitable,  though 
in  most  of  them  the  danger  was  very  great. 


TRIM   JOINT  DISTRICT  SCHOOL  BOARD  V.   KELLY.  II 

arising  out  of  and  in  the  course  of  the  employment  of  the  master, 
and  that  the  accident  caused  his  death.  He  therefore  made  an 
award  in  favor  of  the  respondent.  The  Court  of  Appeal  (the  Lord 
Chancellor  of  Ireland,  Lord  Justice  Holmes,  and  Lord  Justice 
Cherry)  affirmed  the  decision  of  the  County  Court  Judge. 

Lord  Haldane,  L.  C.  It  was  not  in  dispute  that  the  respondent 
was  partly  dependent  on  her  son,  or  that  if  she  was  entitled  to  com- 
pensation for  his  death  the  amount  awarded,  iioo,  was  a  proper 
amount.  The  proceedings  out  of  which  the  appeal  arose  were  taken 
under  the  Act  referred  to,  and  assumed  the  form  of  an  application 
for  arbitration,  which  was  heard  by  the  County  Court  Judge  of  the 
county  of  Meath. 

The  deceased  John  Kelly,  who  was  employed  by  the  appellants, 
was  on  February  12,  igi2,  superintending  the  boys  in  the  school  at 
exercise  in  the  school  yard  when  he  was  assaulted  by  several  of 
them.  He  died  as  the  result  of  his  injuries.  The  assault  was  pre- 
meditated and  the  outcome  of  a  conspiracy  among  some  of  the  boys 
to  injure  Kelly,  who  had  punished  or  threatened  to  punish  them, 
and  who  on  the  occasion  in  question  was  remonstrating  with  them. 

After  referring  to  the  findings  of  the  County  Court  Judge,  the 
Lord  Chancellor  said  that  he  wished  before  alluding  to  the  authori- 
ties on  the  point  to  look  at  the  question  as  if  it  were  a  new  one.  It 
seemed  to  him  important  to  bear  in  mind  that  "accident"  was  a  word 
the  meaning  of  which  might  vary  according  as  the  context  varied. 
In  criminal  jurisprudence  crime  and  accident  were  sharply  divided 
by  the  presence  or  absence  of  mens  rea.  But  in  contract  such  as 
those  of  marine  insurance  and  of  carriage  by  sea,  that  was  not  so. 
In  such  cases  the  maxim  In  jure  non  remota  causa  scd  proxima 
spectatur  was  applied.  He  need  only  re'fer  to  what  was  laid  down 
by  Lord  Herschell  and  l^ord  Bramwell,  when  overruling  the  notion 
that  a  peril  or  an  accident  in  such  cases  was  what  must  happen  with- 
out the  fault  of  anybody,  in  Wilson  v.  The  Oimers  of  Xantho  (3 
The  Times  L.  R.  766;  12  App.  Cas.  503). 

It  was  therefore  necessary,  in  endeavoring  to  arrive  at  what 
was  meant  by  "accident,"  to  consider  the  context  in  which  the  word 
was  introduced.  The  scope  and  purpose  of  that  context  might  make 
the  whole  difference. 

After  alluding  to  the  Workmen's  Compensation  Act,  1906,  and 
observing  that  its  principle  was  to  impose  on  the  employer  a  general 
liability  to  pay  compensation  in  case  of  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  the  employment  when  caused  to 
a  workman,  he  said  that,  if  he  had  to  consider  the  principle  of  the 
statute  as  res  hitegra,  he  would  be  of  the  opinion  that  the  principle 
was  one  more  akin  to  insurance  at  the  expense  of  the  employer  of  the 
workman  against  accidents  arising  out  of  and  in  the  course  of  his 
employment,  than  to  the  imposition  on  the  employer  of  liability  for 
anything  of  which  he  might  reasonably  be  made  answerable  on  the 
ground  that  he  ought  to  have  foreseen  and  prevented  it.  He  thought 
that  the  fundamental  conception  was  that  of  insurance  in  the  true 
sense.    And  if  so  it  appeared  to  him  to  follow  that  in  giving  a  mean- 


12  APPENDIX. 

ing  to  "accident"  in  its  context  in  such  a  scheme  one  would  look 
naturally  to  the  proxima  causa,  of  which  Lord  Herschell  and  Lord 
Bramwell  spoke  in  connection  with  marine  insurance,  the  kind  of 
event  which  was  unlocked  for  and  sudden,  and  caused  personal  in- 
jury, and  was  limited  only  by  this,  that  it  must  arise  out  of  and  in 
the  course  of  the  employment.  Behind  this  event  it  appeared  to 
him  that  the  purpose  of  the  statute  rendered  it  irrelevant  to  search 
for  explanations  or  remoter  causes,  provided  the  circumstances 
brought  it  within  the  definition. 

No  doubt  the  analogy  of  the  insurance  cases  must  not,  as  Lord 
Lindley  pointed  out  in  his  judgment  in  Fenton  v.  Thorley,  (1903) 
A.  C.  443,  be  applied  so  as  to  exclude  from  the  cause  of  injury  the 
accident  that  really  caused  it  merely  because  an  intermediate  con- 
dition of  the  injury — in  that  case  a  rupture  arising  from  an  effort 
voluntarily  made  to  move  a  defective  machine — had  intervened.  If, 
so  far  as  the  workman  was  concerned,  unexpected  misfortune  hap- 
pened and  injury  was  caused,  he  was  to  be  indemnified.  The  impor- 
tant limitation  which  the  statute  seemed  to  him  to  impose  in  the 
interest  of  the  employer,  who  could  not  escape  from  being  a  statu- 
tory insurer,  was  that  the  risk  should  have  arisen  out  of  and  in  the 
course  of  the  employment. 

It  was,  however,  argued  for  the  appellants  that  the  definition 
of  what  accident  meant  in  the  Act  was  determined  dififerently  by  the 
judgments  in  this  House  in  the  case  of  Fenton  v,  Thorley  {supra), 
above  referred  to.  But  the  House  was  not  there  considering  an  in- 
jury unexpected  by  the  workman,  but  caused  by  the  intentional  act 
of  another  person.  Nor  did  he  think  that  the  expressions  used  in  the 
judgments  excluded  such  a  case  from  the  definition  actually  given 
of  accident.  After  saying  that  the  element  of  haphazard  was  not 
necessarily  involved  in  the  word  "accidental,"  Lord  Macnaghten 
defined  "accident,"  as  used  in  the  Act  "in  the  popular  and  ordinary 
sense  of  the  word  as  denoting  an  unlooked-for  mishap  or  an  unto- 
ward event  which  is  not  expected  or  designed."  He  thought  that 
the  context  showed  that  in  using  the  word  "designed"  he  was  refer- 
ring to  designed  by  the  sufiferer.  Nor  did  the  judgment  of  Lord 
Lindley,  when  closely  considered,  appear  to  him  to  support  the  argu- 
ment for  the  appellants. 

His  Lordship  then  considered  in  detail  the  judgment  of  Lord 
Lindley  and  referred  to  subsection  2{b)  of  section  i  of  the  Act, 
which  he  said  confirmed  the  view  that  "accident"  was  used  in  that 
section  as  including  a  mishap  unexpected  by  the  workman,  irre- 
spective of  whether  or  not  it  was  brought  about  by  the  wilful  act 
of  some  one  else.  In  his  opinion,  the  language  of  the  judgments  in 
Fenton  v.  Thorley,  so  far  from  being  authority  which  supported  the 
argument  addressed  to  their  Lordships  from  the  Bar  for  the  appel- 
lants, really  assisted  the  contention  of  the  respondent.  For  that 
language  laid  stress  on  the  wide-reaching  scope  of  the  statute  in 
question.  It  showed  how  that  scope  extended  the  liability  it  em- 
braced beyond  liability  for  negligence,  and  covered  a  field  akin  to 
statutory  insurance  against  injury  to  the  workman  arising  ouc  of 


TRIM   JOINT  DISTRICT  SCHOOL   HOARD  V.    KF.LLY.  I3 

and  in  the  course  of  his  employment,  provided  that  that  injury  was 
something  not  expected  or  designed  by  the  workman  himself.  He 
thought  that  this  conclusion  as  to  what  the  Legislature  intended  by 
its  language  was  strengthened  by  seccion  8,  which  placed  disable- 
ment from  certain  industrial  diseases  on  the  same  footing  as  the 
happening  of  an  accident.  The  provision  seemed  to  show  that  what 
the  legislature  had  in  view  as  a  general  object  to  be  attained  was  the 
compensation  of  the  workman  who  suffered  misfortune. 

If  the  object  of  this  statute  were  as  wide  as  he  gathered  from 
the  study  of  its  language,  its  construction  must,  as  it  appeared  to 
him,  be  that  "accident"  included  any  injury  which  was  not  expected 
or  designed  by  the  workman  himself.  If  so  the  Court  of  Appeal 
in  England  was  right  in  its  decision  in  Nisbet  v.  Raync  (26  Times 
L.  R.,  632 ;  ( 1910)  2  K.  B.  689)  that  the  definition  extended  to  a  case 
of  death  by  murder,  and  the  Court  of  Appeal  in  Ireland  was  right 
in  Anderson  v.  Balfour,  (1910)  2  Ir.  497,  and  in  the  present  case 
in  taking  a  similar  view  of  the  meaning  of  "accident."  To  take  a 
different  view  appeared  to  him  to  amount,  in  the  language  of 
Mathew,  L.  J.,  in  Challis  v.  L.  and  S.  W.  K.  Company  (21  The  Times 
L.  R.,  486 ;  ( 1905)  2  K.  B.  154)  to  the  reading  into  "the  Act  of  a  pro- 
viso that  an  accident  was  not  to  be  deemed  within  it  if  it  arose  from 
the  mischievous  act  of  a  person  not  in  the  service  of  the  employer. 
The  Second  Division  of  the  Court  of  Session  refused  to  follow  these 
decisions  in  Murray  v.  Denholm,  (1911)  S.  C.  1807.  But  he  thought, 
for  reasons  that  he  had  already  given,  that  the  Lord  Justice  Clerk 
misinterpreted  Lord  Macnaghten's  judgment  in  Fenton  v.  Thorley 
{supra)  when  he  read  it  as  meaning  that  the  expression  "accident" 
could  not  be  applied  to  an  accident  arising?  out  of  wilful  crime.  And 
he  was  confirmed  in  his  view  of  the  unrestricted  rendering  of  the 
meaning  of  the  word  v^^iich  he  attributed  to  Lord  Macnaghten  by 
reading  his  subsequent  judgment  in  Clover,  Clayton  &  Co.  v. 
Hughes,  (1910)  A.  C.  242,  where  he  spoke  of  the  "far-reaching  ap- 
plication of  the  word,"  and  intimated  that  what  w^as  held  in  Fenton 
V.  Thorley  (supra)  was  that  "injury"  and  "accident"  were  not  to 
be  separated  and  that  "injury  by  accident"  meant  nothing  more  than 
accidental  injury  or  accident  as  the  word  was  popularly  used. 

In  the  present  case  the  facts  left  little  doubt  on  his  mind  that 
from  one  point  of  view  at  all  events  Kelly  met  with  what  might 
properly  be  described  as  an  accident,  and  it  was  not  the  less  an  acci- 
dent in  an  ordinary  and  popular  sense  in  which  the  word  was  often 
used  merely  for  the  reason  that  it  was  caused  by  deliberate  violence. 
For  the  rest,  he  had  no  doubt  that  there  was  evidence  on  which  the 
arbitrator  could  find,  as  he  did,  that  the  accident  so  defined  arose 
out  of,  and  in  the  course  of,  the  employment. 

He  was  therefore  of  opinion  that  the  appeal  should  be  dismissed 

with  costs. 

Lord  Loreburn  concurred.  He  said  that  etymologically  the 
word  accident  meant  something  which  happened — a  rendering  which 
was  not  very  helpful.  They  were  to  construe  it  in  the  popular  sense, 
as  plain  people  would  understand  it,  but  they  were  also  to  construe 


14  APPENDIX. 

it  in  its  setting,  in  the  context,  and  in  the  Hght  of  the  purpose  which 
appeared  from  the  Act  itself.  Now,  there  was  no  single  rigid  mean- 
ing in  the  common  use  of  the  word.  Mankind  has  taken  the  liberty 
of  using  it,  as  they  used  so  many  other  words,  not  in  any  exact  sense, 
but  in  a  somewhat  confused  way,  or  rather  in  a  variety  of  ways. 

People  said  that  some  one  met  a  friend  in  the  street  quite  by 
accident,  as  opposed  to  appointment,  or  omitted  to  mention  some- 
thing by  accident,  as  opposed  to  intention,  or  that  he  was  disabled 
by  an  accident,  as  opposed  to  disease,  or  made  a  discovery  by  acci- 
dent, as  opposed  to  search  or  reasoned  experiment.  When  people 
used  this  word  they  were  usually  thinking  of  some  definite  event 
which  was  unexpected,  but  it  was  not  so  always,  for  one  might  say 
of  a  person  that  he  was  foolish  as  a  rule  and  wise  only  by  accident. 
Again,  the  same  thing,  when  occurring  to  a  man  in  one  kind  of  em- 
ployment, would  not  be  called  accident,  but  would  be  so  described 
if  it  occurred  to  another  not  similarly  employed.  A  soldier  shot  in 
battle  was  not  killed  by  accident  in  common  parlance.  An  inhabitant 
trying  to  escape  from  the  field  might  be  shot  by  accident.  It  made 
all  the  difference  that  the  occupation  ot  the  two  was  different.  In 
short,  the  common  meaning  of  this  word  was  ruled  neither  by  logic 
nor  by  etymology,  but  by  custom,  and  no  formula  would  precisely 
express  its  usages  for  all  cases. 

Mr.  Sankey  ably  urged  upon  their  Lordships  that  this  man 
could  not  have  been  killed  by  accident  because  he  was  struck  by 
design.  Suppose  some  ruffian  laid  a  log  on  the  rails  and  wrecked  a 
train,  was  the  guard  who  had  been  injured  excluded  from  the  Act? 
Was  a  gamekeeper  who  was  shot  by  poachers  excluded  from  the 
Act?  There  was  design  enough  in  either  case,  and  of  the  worst 
kind.  In  either  case  he  would  have  thought,  if  the  nature  of  the 
man's  employment  was  looked  at,  it  might  be  said  he  was  injured 
by  what  was  accident  in  that  employment.  When  Lord  Macnagh- 
ten,  in  Fenton  v.  Thorley  (supra)  spoke  of  the  occurrence  being 
"undesigned,"  he  thought  he  meant  undesigned  by  the  injured  per- 
son. One  could  not  imagine  its  being  said  of  a  suicide  that  he  was 
killed  by  accident.  He  found  that  to  treat  the  word  accident  as 
though  the  Act  meant  to  contrast  it  with  design  would  exclude,  from 
what  he  was  sure  was  an  intended  benefit,  numbers  of  cases  which 
were  to  his  mind  obviously  within  the  mischief.  That  made  him 
realize  the  value  of  the  old  rule  about  construing  a  remedial  statute. 
Just  as  in  the  case  of  the  guard  or  the  gamekeeper,  so  here  this  man 
was  injured  by  what  was  accident  in  the  employment  in  which  he 
was  engaged.  It  was  not  the  less  so  that  the  person  who  inflicted 
the  injury  acted  deliberately.  He  also  came  to  the  conclusion  that 
there  was  evidence  to  support  the  finding  of  the  County  Court  Judge 
that  the  accident  arose  out  of  the  employment. 

Lord  Dunedin  differed.  After  discussing  Lord  Macnaghten's 
definition  of  "accident,"  in  Fenton  v.  Thorley  (supra),  he  said  that 
there  was  one  matter  of  completely  general  application  which  he 
conceived  was  authoritatively  decided  by  Fenton's  case  (supra)  and 
that  was  that  the  expression  "injury  by  accident"  in  the  statute  must 


TRIM   JOINT  DISTRICT  SCHOOL  BOARD  V.   KELLY.  I5 

be  interpreted  according  to  the  meaning  of  the  words  in  ordinary 
popular  language. 

Now  there  was  no  authoritative  test  of  what  was  the  meaning 
of  popular  language.  On  such  a  matter  they  were  bound  to  take 
their  own  personal  experience  as  persons  well  acquainted  with  popu- 
lar language.  For  himself,  he  confessed  that  it  seemed  so  clear  that 
in  popular  language  the  injury  in  this  case  was  not  an  injury  caused 
by  accident,  that  it  was  difficult  for  him  to  use  terms  which  might 
not  appear  wanting  in  respect  to  those  who  had  expressed  themselves 
otherwise. 

It  must  be  conceded  that  the  injury  here  was  caused  by  de- 
sign— i.  e.,  that  there  was  an  intention  to  inflict  an  injury.  To  his 
thinking,  the  word  accident  in  popular  language  was  the  very  antith- 
esis of  design.  He  brushed  aside  at  once  all  argument  as  to  acts 
of  conscious  volition.  The  design  must  be  design  to  inflict  injury, 
not  design  to  do  the  act  which  might,  as  it  turned  out,  be  the  cause 
of  the  injury.  Popular  language  bore  him  out  in  this  direction.  If 
a  workman  kicked  a  brick  off  a  scaffold  and  it  happened  to  hit  and 
injure  a  man  below,  popular  language  would  say  he  had  met  with 
an  accident.  Popular  language  in  this  case,  he  maintained,  would 
never  say  that  Kelly  met  his  death  by  accident.  It  would  say  that 
he  was  murdered.  In  so  doing  it  might  not  be  positively  accurate. 
The  crime  as  a  crime  might  possibly  not  be  murder,  but  only  man- 
slaughter, as  indeed,  a  jury  found.  But  whether  murder  or  man- 
slaughter mattered  not.  Both  terms  were  negative  of  accident  in  the 
popular  sense.  And  here  he  would  like  to  say  that  in  his  view  crim- 
inal law  had  nothing  to  do  with  the  matter.  Criminal  law  had  to 
do  with  mens  rea.  "  When  one  said  that  popular  language  would 
describe  this  as  murder,  that  was  because  the  narrator  of  what  had 
happened  would  naturally  use  a  positive  expression  which  according 
to  his  view  fitted  the  facts.  The  point  was  that  he  would  not  use  the 
expression  "accident,"  because  he  would  consider  it  inappropriate. 
Suppose  A  attacked  B  and  was  shot  by  B  in  self-defense,  there 
would  be  no  vicns  rea  in  B,  and  no  crime.  None  the  less,  no  one 
popularly  would  describe  A's  death  as  a  death  by  accident. 

He  wished  to  add  a  word  as  to  the  scope  of  the  statute.  It 
was  said  to  aid  the  argument  in  favor  of  the  enlarged  meaning  of 
accident  to  consider  that  the  statute  introduced  a  system  of  com- 
pulsory insurance  of  the  workman  by  his  employer.  Again,  with 
great  deference,  he  could  not  see  that  by  this  statute  the  argument 
was  forwarded  one  whit— insurance  let  it  be— but  insurance  against 
what?  In  a  contract  one  found  an  answer  to  this  riucslion  in  the 
terms  of  the  policy.  Here  the  policy  was  the  Act  of  Parliament  and 
by  an  interpretation  of  its  terms  one  must  stand  or  fall.  So  that  it 
only  came  back  to  the  same  question.  What  was  the  meaning  of 
the' word  as  used?  As  for  further  speculations,  these,  he  humbly 
thought,  were  entirely  outside  their  province.  He  would  only  say 
that  if  judges  were  to  indulge  in  speculations  and  reminiscences, 
thev  would  probablv  find  that  such  speculations  and  reminiscences 
did  not  altogether  tally.     But  clearly  they  had  nothing  to  do  with 


l6  APPENDIX. 

such  matters.  Parliament  might  have  left  out  the  word  accident. 
It  did  not  do  so.  On  the  contrary,  it  put  it  in,  as  Lord  Macnaghten 
said,  with  the  approbation  of  all  the  other  lords,  in  Fenton's  case 
(supra),  "parenthetically,  as  it  were,  to  qualify  the  word  injury, 
conrining  it  to  a  certain  class  of  injuries  and  excluding  other 
classes,"  and  they  had  to  interpret  it.  And  in  interpreting  it  he 
would  like  to  say  that  he  agreed  with  his  noble  and  learned  friend, 
Lord  Atkinson  whose  judgment  he  had  the  advantage  of  reading, 
that  the  interpretation  of  accident  given  by  the  appellants  really  cut 
the  word  accident  out  of  the  Act. 

On  the  whole  matter  he  put  to  himself  the  entire  question  in 
the  words  of  the  statute,  Was  what  Kelly  suffered  an  injury  by  ac- 
cident arising  out  of  and  in  the  course  of  his  employment?  And 
remembering  the  repeated  decisions  of  this  House  that  he  was  to 
take  the  language  in  the  ordinary  popular  meaning  he  answered 
unhesitatingly,  No. 

Lord  Atkinson  and  Lord  Parker  of  Waddington  agreed  with 
Lord  Dunedin. 

Lord  Shaw  of  Dunfermline  and  Lord  Reading  agreed  with  the 
Lord  Chancellor  and  Lord  Loreburn. 

In  the  result  the  appeal  was  dismissed.^ 


EKE  V.  HART-DYKE. 
Court  of  Appeal,  1910.    Law  Reports  1910,  2  K.  B.  677. 

Appeal  against  the  award  of  the  judge  of  the  county  court  of 
Bromley,  sitting  as  arbitrator  under  the  Workmen's  Compensation 
Act,  1906. 

The  question  raised  by  this  appeal  was  whether  the  workman's 
death  was  caused  by  accident  or  disease  ? 

Proceedings  for  compensation  having  been  taken,  the  county 
court  judge  came  to  the  conclusion  that  the  deceased  died  from  the 
results  of  poisoning  contracted  while  working  on  the  cesspools,  and 

^Accord:  Risdale  v.  Kilmarnock,  59  Sol.  Journal  &  Weekly  Rep.  145 
(C.  A.  Eng.,  1915),  engineer  of  steam  trawler  injured  by  the  blow- 
ing up  of  the  vessel  which  struck  an  enemy's  floating  mine,  and  Thorn 
V.  Humm  &  Co.,  AA  Co.  Ct.  Chron.  535  (1914)  ;  /;;  re  Evans,  Bulletin  Ind. 
Com.  Ohio,  Vol.  1,  No.  7,  watchman  killed  by  burglars.  The  Ohio  Industrial 
Commission  has  held  that  the  dependents  of  a  female  stenographer  shot 
while  taking  dictation  by  a  discarded  suitor,  a  fellow  employe,  were  en- 
titled to  compensation,  the  injury  being  received  in  the  course  of  employment 
and  the  Ohio  Act  not  requiring  that  it  should  "arise  out  of"  the  employment. 
In  re  Schivenlein,  Bulletin  of  the  Industrial  Com.  of  Ohio,  Vol.  1,  No.  7, 
p.  136  (1914).  See  also  In  re  Clark,  same  Bulletin,  p.  125  (1914)  ;  employe 
while  at  work  killed  by  a  fellow  workman  who  quarreled  with  hirn  over  the 
possession  of  a  tool;  In  re  William  Wharton,  opinions  of  the  Solicitor  of  the 
Department  of  Labor  and  Commerce  250,  and  the  ruling  of  the  Washington 
Industrial  Commission  in  its  1st  Report  476  to  the  effect  that  compensation 
was  payable  to  a  street  car  conductor  injured  by  unruly  passengers  whom  he 
was  trying  to  keep  in  order. 


EKE  V.  IIART-DVKE.  1/ 


he  made  an  award  in  favor  of  the  appHcant.     The  respondent  ap- 
pealed.   The  appeal  was  heard  on  July  12. 

Cozens-Hardy  M.  R.  That  leaves  only  this  question:  Was 
there  "an  injury  by  accident  arising  out  of  and  in  the  course  of  the 
employment"  ?  In  my  opinion  there  was  not.  This  Court  and  the 
House  of  Lords  have  been  engaged  again  and  again  in  discussing 
that  word  "accident,"  and  so  far  as  I  am  aware  neither  this  Court 
nor  the  House  of  Lords  has  ever  attempted  to  say  that  a  mere  dis- 
ease without  accident,  not  attributed  to  something  which  may  prop- 
erly be  called  an  accident,  entitles  a  workman  to  compensation  under 
the  Act.  No  doubt  there  have  been  some  cases  which  were  very 
near  the  line.  There  was  the  case  which  is  always  cited  on  these 
occasions  of  Brinton,  Limited  v.  Turvey,  (1905)  A.  C.  230,  but  in 
that  case  the  decisions,  both  in  this  Court  and  in  the  House  of  Lords, 
entirely  turned  upon  this,  that  it  was  found  as  a  fact  by  the  learned 
county  court  judge,  who  was  the  judge  of  fact,  that  the  anthrax  of 
which  the  man  died  was  due  to  the  circumstance  that  at  a  particular 
time  and  at  a  particular  place  a  particle  came  from  the  wool  with 
which  he  was  dealing,  settled  in  the  man's  eye,  and  set  up  the  disease 
which  caused  his  death.  In  the  face  of  that  particular  finding  of 
fact  the  Court  held  that  it  was  an  accident,  and  that  it  was  an  acci- 
dent which  resulted  in  his  death  from  anthrax.  But  I  think  all  the 
judges  carefully  abstained  from  lending  color  to  the  suggestion 
that  a  mere  disease  which  you  could  not  say  was  contracted  at  a 
particular  time  and  at  a  particular  pkice  by  a  particular  accident  was 
an  accident  which  entitled  a  man  to  compensation. 

I  have  thus  far  made  no  mention  of  one  portion  of  the  Act 
which  seems  to  me  to  be  of  great  value  as  explaining  the  position. 
Under  the  Act  of  1896  (jisease  apart  from  accident  did  not  entitle 
a  workman  to  compensation.  That  was  decided  again  and  again. 
But  by  section  8  of  the  Act  of  1906  the  provisions  of  the  Act  are 
applied  to  certain  scheduled  diseases,  which  are  extended  from  tmie 
to  time  by  orders  made  by  one  of  the  Government  departments,  and 
the  section  provides  that  where  the  certifying  surgeon  certihes  that 
the  workman  is  sufifering  from  one  of  the  scheduled  diseases,  and  is 
disabled  from  earning  full  wages,  or  is  suspended  from  his  usual 
employment,  or  has  died  from  such  disease  "and  the  disease  is  due 
to  the  nature  of  any  employment  m  which  the  workman  was  em- 
ployed at  any  time  within  twelve  months  previous  to  the  date  of  the 
disablement  or  suspension,  whether  under  one  or  more  employers, 
he  or  his  dependents  shall  be  entitled  to  compensation  umler  this 
Act  as  if  the  disease  or  such  suspension  as  aforesaid  were  a  personal 
•injury  by  accident  arising  out  of  and  in  the  course  of  that  emi)loy- 
ment "  That  is  to  sav,  true,  it  is  not  an  accident,  but  the  disease 
shall  be  treated  as  though  it  were  a  personal  injury  by  accident ; 
disablement  is  to  be  treated  as  the  happening  of  the  accident,  not 
when  the  original  source  of  the  mischief  got  into  the  man  s  system, 
but  the  moment  at  which,  and  no  earlier  than  the  moment  at  which, 
the  actual  disablement  takes  place.  That  for  the  purpose  of  the 
scheduled  diseases  is  treated  as  "an  accident."    In  my  opinion,  there- 


l8  APPENDIX. 

fore,  except  in  the  case  of  these  industrial  or  scheduled  diseases, 
unless  the  applicant  can  indicate  the  time,  the  day,  and  circumstance, 
and  place,  in  which  the  accident  has  occurred  by  means  of  some 
definite  event,  the  case  can  not  be  brought  within  the  general  pur- 
view of  the  Act,  and  does  not  entitle  the  workman  or  his  dependents 
to  compensation. 

In  my  opinion  the  learned  judge  below  was  wrong  in  holding 
that  the  workman  died  from  the  results  of  poisoning  contracted 
while  working  on  the  cesspools,  whether  it  is  called  ptomaine  or 
toxin  poisoning.  That  seems  to  me  to  be  a  finding  not  sufficient  to 
bring  the  case  within  what  was  decided  in  Brintons,  Limited  v.  Tur- 
vey,  (1905)  A.  C.  230,  and  is  not  in  any  way  sufficient  to  enable  us 
to  say  as  a  matter  of  law  that  there  is  any  accident  here  within  the 
meaning  of  the  Act. 

In  my  opinion  this  appeal  must  be  allowed. 

Farwell,  L.  J.  The  question  what  has  happened  is  a  question 
of  fact  for  the  judge,  and  the  judge  here  has  found  two  facts  which 
show  that  this  case  is  not  within  Brintons,  Limited  v.  Tnrvey, 
(1905)  A.  C.  230.  First,  he  has  found  that  it  is  not  possible  to  give 
a  day  as  the  date  of  the  alleged  accident.  The  time  of  the  accident 
is  sufficiently  given,  he  says,  under  the  circumstances.  I  do  not 
know  what  he  means  by  that,  but  the  first  finding  is  that  it  is  im- 
possible to  give  a  day  as  the  date  of  the  accident,  and  the  next  is 
that  the  workman  died  from  the  results  of  poisoning  contracted 
whilst  working  on  the  cesspools,  whether  it  is  called  ptomaine  or 
toxin  poisoning.  This  is  analogous  to  saying  that  he  died  from  the 
results  of  cold  contracted  some  time  or  other  during  the  last  month 
by  working  in  a  factory.  That  is  not  the  sort  of  specific  finding 
which  is  required  to  support  the  conclusion  that  an  accident  within 
the  meaning  of  the  Act  has  happened. 

Kennedy,  L.  J.  On  the  second  point  I  am  not  prepared  to 
diflfer  from  the  judgments  that  have  been  pronounced,  but  in  say- 
ing that  I  must  express  my  own  feeling  of  doubt  on  the  point.  In 
the  case  of  Broderick  v.  London  County  Council,  (1908)  2  K.  B. 
807,  I  entirely  assented,  and  I  still  assent,  to  the  reasoning  which 
was  fully  and  clearly  expressed  by  the  Master  of  the  Rolls  in  his 
judgment,  and  in  the  course  of  which  he  cited  what  Mathew  L.  J. 
insisted  on  in  Steel  v.  Cammell,  Laird  &  Co.,  Ltd.,  (1905)  2  K.  B. 
232,  that  is  that  where  you  have  a  man  following  a  dangerous  occu- 
pation, and  you  can  not  give  a  date,  the  case  is  not  within  the  Act. 
except  in  regard  to  these  particular  classes  of  disease  which  are  now 
scheduled.  It  is  hardly  a  lawyer's  question.  Here  the  case  is  this. 
A  man  not  employed  in  sewer  work  at  all,  but  employed  as  care- 
taker and  laborer,  is  asked  to  assist  in  opening  up  some  cesspools ; 
there  are  three  or  four  dates  given,  all  within  about  a  week,  during 
which  he  was  employed  in  this  work,  and  it  seems  to  me  that  it  is  im- 
possible to  put  that  evidence  exactly  on  the  same  basis  as  the  findings 
of  fact  in  the  cases  to  which  reference  has  been  made,  as,  for  in- 
stance, Broderick  v.  London  County  Council,  supra,  where  the  man 
was  inhaling  sewer  gas  in  the  course  of  his  regular  employment  bv 


EKE  V.  IIART-DVKE.  IQ 

the  London  County  Council  in  sewers.  You  can  not  say  in  such  a 
case  that  there  was  an  accident,  because  it  may  be  the  cumulative 
result  of  weeks  or  months,  or  years,  of  such  work.  Here  you  have 
a  man  set  to  do  a  particular  job.  He  goes  down  to  it,  and  the  result 
is  an  illness,  and  it  is  found  by  the  county  court  judge  that  it  is  due 
to  the  inhalation,  or  getting  into  his  body — putting  it  in  the  most 
general  form — of  a  toxin  in  the  form  of  bacteria.  According  to  the 
judgment  of  the  House  of  Lords,  if  you  can  prove  that  on  a  particu- 
lar day.  though  nobody  saw  it,  a  particular  bacterium  from  the  wool 
struck  his  eye,  because  his  eye  was  afterward  found  to  be  diseased, 
that  is  an  accident.  It  is  not  easy,  I  think,  to  draw  a  clear  line  of 
distinction  between  that  and  what  might,  I  think,  have  been  found 
here,  on  the  medical  evidence,  that  the  death  was  due  to  toxin  poi- 
soning which  got  into  his  body  on  one  or  other  of  the  particular  oc- 
casions on  which  the  deceased  worked  in  the  cesspools. 

Appeal  allowed.^ 

\4ccord:  Steely.  Cammell,  Laird  6-  Co.,  L.  R.  1905.  2  K.  B.  232.  7  W. 
C.  C.  9.  lead  poisoning;  Brodcrick  v.  London  Couiitv  Council,  L.  R.  1908,  2 
K.  B.  807,  1  B.  W.  C.  C.  219,  contracted  by  the  constant  and  continued  in- 
halation of  sewer  gas ;  Marshall  v.  East  Holvwcll  Coal  Co.,  Corlev  v.  Back- 
worth  Colliery  Co.,  21  T.  L.  R.  494  (C.  A.  Eng.  1905).  7  W.  C.  C.  19.  miners' 
diseases  caused  by  continuous  friction,  Martin  v.  Manchester  Corp.,  28  T. 
L.  R.  344  (C.  A.  Eng.,  1912).  5  B.  W.  C.  C.  259;  Evans  v.  Dodd,  5  B.  W. 
C.  C.  305  (C.  A.  Eng.,  1912)  ;  Sherwood  v.  Johnson,  5  B.  W.  C.  C.  686  (C. 

A.  Eng.,  1912)  ;  Liondale  Bleach  &c.  Works  v.  Rikcr,  85  X.  J.  L.  426  (1914). 

The  Massachusetts  Act  omits  the  words  "by  accident"  and  only  requires 
notice  of  the  injury,  in  consequence  it  has  been  declared  to  include  "occupa- 
tional diseases"  as  well  as  all  other  diseases  though  of  gradual  growth  due 
to  continuous  exposure  to  unsanitary  work  conditions,  Hurlc's  Case,  217 
Mass.  223  (1914)  ;  Johnson's  Case,  217  Mass.  588  (1914). 

The  Michigan  act  while  emitting  the  words  "by  accident"  from  its  defini- 
tion of  compensable  injuries,  requires  the  claimant  to  give  notice  of  "the 
accident."  For  this  and  other  reasons  the  Supreme  Court  of  Michigan  held 
in  Adams  v.  Acme  White  Lead  etc.  Works,  148  N.  W.  485  (1914  Mich.), 
that  gradual  lead  poisoning  was  not  covered  by  the  terms  of  tliat  act. 

So  even  a  deterioration  of  the  physical  structure  of  the  body  due  to 
the  strain  of  continuous  hard  or  even  excessive  labor  is  not  the  subject  of 
compensation  under  either  of  the  British  acts.  Walker  v.  Hockney  Bros.,  2 

B.  W.  C.  C.  20  (C.  A.  Eng..  1909),  paralysis  due  to  the  over-exertion  in- 
volved in  the  constant  propelling  of  a  carrier  tricvcle;  Coe  v.  Fife  Coal  Co., 
1909,  Sess.  Cases  393,  2  B.  W.  C.  C.  8.  gradual  break-down  of  the  heart  due 
to  long-continued  overwork.  Where,  however,  some  sudden  over-exertion 
causes  a  break-down  of  the  brain  or  an  organ  previously  weakened  by  over- 
exertion this  is  an  injurv  bv  accident,  Mclnncs  v.  Dunsmuir  &  Jackson,  45 
Scot.  L.  R.  804  (1908,  Sc.  Ct.  Sess.),  1  B.  W.  C.  C.  226,  but  see  Kerr  v. 
Ritchies,  1913,  Sess.  Cases  613,  6  B.  W.  C  C.  419. 


20  APPENDIX. 

SECTION  2. 
"Arising  Out  of  and  in  the  Course  of  the  Employment.' 


(a)   "In  the  course  of  employment. 


GANE  V.  NORTON  HILL  COLLIERY  COMPANY. 
Court  of  Appeal,  England,  1909.    L.  R.  1909,  2  K.  B.  539. 

An  appeal  by  the  workman  from  an  award  of  his  Honor  Judge 
Gwynne  James  at  the  County  Court  at  Midsomer. 

Cozens-Hardy,  M.  R.  I  hope  I  shall  never  be  found  departing 
from  the  fundamental  rule  that  the  learned  County  Court  Judge  is 
the  tribunal  to  find  the  facts  of  a  case.  But  if  the  learned  Judge 
draws  from  the  admitted  facts  a  wrong  conclusion  in  point  of  law 
— I  care  not  whether  you  call  it  misdirecting  himself  or  not — that  is 
a  decision  which  is  open  to  review  in  this  Court.  Now  what  are 
the  facts  found  by  the  learned  Judge  in  the  present  case,  and,  as  I 
say,  not  in  dispute  ?  The  applicant  was  employed  at  the  respondents' 
colliery,  and  went  there  every  morning.  Through  some  mishap  to 
the  machinery  the  applicant  had  to  come  up  from  the  pit  earlier  than 
usual,  and  had  to  go  home.  Having  come  up,  he  went  home  by  the 
route  which  he  had  adopted  during  the  whole  time  of  his  employ- 
ment, and  he  had  been  employed  by  the  respondents  for  eighteen 
months.  For  the  eighteen  months  during  which  he  had  been  a 
workman  at  the  colliery — with  the  single  exception  of  Saturdays, 
when  he  had  to  go  to  the  pay  office — the  applicant  always  went  from 
the  colliery  through  a  door,  down  some  steps,  and  across  certain 
lines  of  railway  upon  which  the  colliery  trucks  are  moved  backward 
and  forward,  as  the  occasion  may  be.  Not  only  did  the  applicant 
do  that,  but  also  all  the  colliers  living  in  the  same  district  as  that  in 
which  the  applicant  lived.  It  is  true  that  there  were  two  other 
modes  by  which  the  colliers  might  have  left  the  colliery  premises 
and  gone  to  their  homes,  one  of  which  was  by  crossing  a  bridge  a 
little  further  round,  and  another  of  which  was  in  a  different  direc- 


'This  phrase  is  used  in  all  the  Compensation  Acts  in  force  throughout 
the  United  States  except  that  of  the  states  of  Washington  and  Wisconsin. 
The  Washington  Act  (Sec.  5)  provides  that  "every  workman  who  shall  be 
injured  whether  upon  the  premises  or  at  the  plant,  or  he  being  in  the  course 
of  his  employment,  away  from  the  plant  of  his  employer,  or  his  family  or 
dependents  in  case  of  the  death  of  the  workman,  shall  receive  .  .  .  com- 
pensation;" while  the  W^isconsin  Act.  Sec.  2394-3  (2).  gives  compensation 
"where,  at  the  time  of  the  accident,  the  employe  is  performing  service  ^ow- 
ing out  of  and  incidental  to  his  employment"  and  further  provides  that  every 
employe  going  to  or  from  his  employment  in  the  ordinary  or  usual  way. 
while  upon  the  premises  of  his  employer  shall  be  deemed  to  be  performing 
service  growing  out  of  and  incidental  to  his  employment." 


GANE  V.   NORTON   HILL  COLLIERY  CO.  21 

tion.  But  the  learned  County  Court  Judge  iinds  in  the  clearest  pos- 
sible language  that  the  way  that  the  applicant  went  on  the  day  of 
the  accident  was  the  usual  one  for  him  to  go,  the  usual  one  for  the 
other  men  to  go  who  lived  in  the  same  direction,  and  the  one  and 
only  way  which  he  and  they  went  except  on  Saturdays.  He  adds : 
"1  am  driven  to  the  conclusion,  that  being  so,  that  it  was  with  the 
knowledge  of  the  respondents  that  the  man  went  that  way,  and  the 
respondents  never  suggested  to  the  men  that  they  should  not  go 
that  way."  Having  gone  on  this  particular  occasion  through  that 
door,  down  those  steps,  as  he  had  done  for  eighteen  months,  there 
happened  to  be  trucks  on  the  railway  lines,  and  the  applicant  with 
the  other  workmen  who  were  coming  away  at  the  same  time — two 
of  whom,  I  understand,  gave  evidence — was  passing  between  two  of 
the  trucks  when  there  were  some  shunting  operations,  of  which 
there  was  no  warning,  I  presume,  given,  and  the  unfortunate  man 
had  the  wheels  of  one  truck  come  over  his  legs,  and  he  has  had  to 
have  both  legs  amputated.  What  was  the  duty  of  the  applicant ; 
what  was  really  the  implied  term  of  his  employment?  That  he 
should  when  his  day's  work  was  over,  without  loitering  and  with 
all  reasonable  speed,^  leave  the  colliery  premises  by  the  accustomed 
and  permitted  route.  That  is  what  he  did.  It  was  in  the  course  of 
that  departure  that  the  accident  happened.  I  feel  myself  bound  to 
say  that  in  point  of  law  this  accident  which  happened  in  the  immedi- 
ate neighborhood  of  the  pit's  mouth,  close  to  the  screen  on  the 
colliery  premises,  was  an  accident  which  happened  "in  the  course 
of"  the  applicant's  employment — the  course  of  his  employment 
plainly  not  being  limited  at  one  end  to  the  moment  when  he  reaches 
the  place  where  he  is  to  do  his  work,  or  at  the  other  end  to  the 
moment  when  he  comes  ^up  from  the  pit's  mouth.  It  must  include 
a  reasonable  interval  of  time  and  of  space  during  which  the  employ- 
ment lasts.  I  do  not  think  that  I  need  repeat  what  I  said  in  the 
"colliers'  train  case"  {Cremins  v.  Guest,  Keen  and  Ncttlefolds,  Lim- 
ited, (1908)  I  K.  B.  469;  I  B.  W.  C.  C.  160),  though  I  niust  not 
be  taken  to  lend  any  color  to  the  suggestion  that  a  workman  is  en- 
titled to  the  protection  of  the  Act  during  the  whole  period  neces- 
sary to  get  to  his  own  home  from  the  place  where  he  is  employed.^ 


^  While  a  workman  may  hot  loiter  unnecessarily  upon  his  employer's 
premises,  Smith  v.  South  Normanton  Colliery  Co.,  Ltd.,  (1903)  1  K.  B  ..W. 
5  W.  C.  C.  14;  Benson  v.  Lancashire  &  Yorkshire  Ry.  Co.,  (1904)  1  K.  B. 
242  6  W  C  C.  20,  he  is  allowed  a  reasonable  time  to  get  to  and  from  his 
work  and  see  In  re  McCarthy,  note  3  infra.  What  is  a  reasonable  tmie  de- 
pends on  the  circumstance  of  the  case.  So  if  the  workmen  are  obliged  to 
come  and  go  by  trains  which  arrive  and  leave  some  little  time  before  and 
after  the  work  begiiis  and  ends,  the  workmen  are  not  required  to  pass  these 
intervals  on  the  public  highways,  but  are  in  the  course  of  their  employment 
while  passing  them  upon  their  employer's  premises,  especially  if  their  cus- 
tom of  so  doing  is  known  to  their  employer  and  he  has  provided  for  their 
accommodation.  Sharp  v.  Johnson  &  Co.,  (1905)  2  K.  B.    39.  7 _W.  C  C  28 

'See  Lord  Dunedin  in  McNeice  v.  Singer  Saving  Machine  Co.,  48  be. 
L  R  15  (1910),  "After  he"  (a  workman  leaving  a  factory)  "has  once  got 
clear  of  the  factory  and  is  going  to  his  home  in  another  part  of  the  town, 
he  would  not  be  injured  in  the  course  of  the  employment     and  this  is  so 


22  APPENDIX. 

But  in  a  case  like  the  present  it  seems  to  me  quite  impossible  as  a 
matter  of  law  to  say  on  these  admitted  facts — the  accident  having 
happened  where  it  did,  and  at  the  time  it  did — that  it  was  not  an 
accident  which  happened  "in  the  course  of"  his  employment.  For 
these  reasons  I  think  that  the  learned  County  Court  Judge — who 
himself  expressed  very  great  doubt  as  to  the  proper  inference  he 
ought  to  draw — did  not  draw  the  right  inference.  I  think  that  our 
conclusion  must  be  that  this  accident  did  arise  "in  the  course  of" 
the  employment  as  well  as  "out  of"  it,  and,  therefore,  that  compen- 
sation ought  to  be  awarded  to  the  applicant.  Unless  the  figures  are 
agreed  the  case  will  have  to  go  back  to  the  learned  County  Court 
Judge.2 

Kennedy  and  Farwell,  L.  JJ.,  delivered  judgments  to  the 
same  effect. 

Appeal  allowed. 


if  he  is  walking,  and  see  In  re  Anderson,  Bulletin  Ind.  Com.  of  Ohio,  Vol. 
1,  No.  21,  p.  90. 

So  there  is  no  compensation  due  under  the  Act  to  a  workman  injured 
by  strikers  in  the  public  streets  while  on  his  way  home  from  work,  and  if 
the  employer  has  agreed  to  compensate  him,  the  compensation  so  promised 
must  be  recovered  by  an  action  on  the  contract,  Poiilton  v.  Kelsall,  L.  R. 
1912,  2  K.  B.  131,  5  B.  W.  C.  C.  318. 

Nor  is  the  employer  liable  because  the  workman  to  reach  his  work  must 
pass  over  the  place  where  the  injury  occurs  and  in  so  doing  would  be  a 
trespasser,  except  for  the  implied  license  to  enter  which  he  has  as  the  work- 
man of  his  employer,  Holness  v.  Mackay  &  Davis,  L.  R.  1899,  2  Q.  B.  319, 
1  W.  C.  C.  13,  where  an  employe  of  a  contractor  who  was  doing  work  on 
a  railway  line  was  injured  at  a  crossing  over  which  he  had  to  pass  to  reach 
the  point  where  the  work  was  being  done ;  but  see  Sundine's  Case,  218  Mass. 
1  (1914),  105  N.  E.  433,  where  a  workgirl  was  injured  while  on  her  way  to 
lunch  upon  a  flight  of  steps  which,  while  affording  the  only  access  to  her 
place  of  work,  were  not  owned  by  or  under  the  control  or  reparable  by  her 
employer,  a  contractor,  or  the  person  whose  work  the  latter  had  contracted 
to  do. 

^Accord:  Hoskins  v.  /.  Lancaster,  3  B.  W.  C.  C.  476  (C.  A.  Eng.  1910), 
a  workman  going  to  work  along  a  private  road  on  his  master's  land  was 
caught  by  a  large  iron  gate  thereon  at  a  point  150  yards  from  his  actual 
work  place;  In  re  McCarthy,  Bulletin  Ohio  Ind.  Com.,  Vol.  1,  No.  7,  p.  190 
(1914),  and  In  re  Schroeb,  id.,  p.  132.  The  Scottish  cases  seem  to  take  a  nar- 
row view  and  to  require  the  workman  to  "come  to  some  point  where  he  enters 
upon  the  work  he  has  to  do."  Anderson  v.  Fife  Coal  Co.,  1910  Sess.  Cases  8 
(Sc.  Ct.  of  Sess.),  3  B.  W.  C.  C.  539  and  see  25  H.  L.  R.  404,  note  7. 

A  workman  is  in  the  course  of  his  employment  if  he  goes  upon  his 
employer's  premises  for  the  purpose  of  preparing  himself  for  work,  as  by 
obtaining  information  when  work  will  begin  in  the  future  or  to  get  his 
pay,  and  this  whether  he  is  still  in  the  master's  employment  or  the  employ- 
ment has  ceased,  nothing  remaining  to  be  done  except  to  receive  his  wages 
or  to  get  his  tools  which  he  left  when  he  quitted  the  employment.  Molloy 
V.  South  Wales  Anthracite  Collierv  Co.,  4  B.  W.  C.  C.  65  (C.  A.  Eng.,  1910)  ; 
Lowry  v.  Scheffield,  24  T.  L.  R.  "142  (C.  A.  Eng..  1907),  1  B.  W.  C.  C.  1 ; 
Riley  v.  Holland  &  Sons,  L.  R.  1911.  1  K.  B.  1029,  4  B.  W.  C.  C.  155;  Nel- 
son V.  Belfast  Corp.,  42  Ir.  L.  T.  R.  223  (C.  A.  Jr.,  1908),  1  B.  W.  C.  C.  158, 
In  re  Phillips,  Bui.  Ind.  Com.  of  Ohio,  Vol.  1,  No.  7,  p.  49  (1914),  but  not 
when  he  returns  after  being  paid  off  to  complain  of  a  supposed  error  in  the 
amount,  Phillips  v.  Williams,  4  B.  W.  C.  C.  143  (C.  A.  Eng.,  1911). 


BLOVELT  V.  SAWYER.  23 

BLOVELT  V.  SAWYER. 
Court  of  Appeal,  1903.    L.  R.  (1904),  1  K.  B.  271. 

Appeal  from  the  refusal  of  the  judge  of  the  North  Shields 
County  Court  to  award  compensation,  under  the  Workmen's  Com- 
pensation Act,  1897,  to  the  applicant  in  respect  of  injuries  caused  to 
him  by  an  accident. 

Collins,  M.  R.     I  am  of  opinion  that  this  appeal  should  be 
allowed.    The  applicant  was  a  bricklayer,  paid,  as  we  are  informed, 
by  the  hour,  though  that  is  not  to  be  found  in  express  terms  in  the 
judge's  note.    What  happened  was  that  in  the  dinner  hour,  in  which 
it  was  open  to  him  to  go  away  from  the  premises,  he  stayed  and  sat 
down  to  have  his  dinner  by  a  wall  which  had  just  been  built.     It 
appears  from  his  evidence  that  there  was  no  rule  as  to  the  workmen 
going  or  staying  during  the  dinner  hour,  and  that  he  was  at  liberty 
to  do  either.    The  learned  judge  of  the  county  court  has  given  judg- 
nent  in  a  few  words.  He  says :  "I  was  of  opinion  that,  as  the  appli- 
cant had  sat  down  for  the  purpose  of  eating  his  dinner  when  the 
accident  happened,  the  accident  did  not  arise  out  of  and   in  the 
course  of  his  employment,  and  therefore  dismissed  the  application." 
On  the  evidence  as  it  stands  on  the  judge's  notes  I  should  have  felt 
no  difficulty,  because  it  would  appear  prima  facie  to  indicate  that 
the  man  was  in  his  master's  employment  during  the  whole  of  each 
day,  from  the  time  at  which  he  went  to  his  work  to  the  time  when 
he  came  av/ay,  and  equally  during  the  dinner  hour,  if  he  stayed,  as 
during  any  other  part  of  the  time.     He  would  be  there  on  the  con- 
tract with  his  master  during  all  those  hours,  either  directly  in  order 
to  do  that  for  which  he  AVas  employed  or  for  some  purpose  ancillary 
thereto.     That  would  embrace  all  his  movements  within  the  ambit 
of  the  factory,  going  or  coming,  or  stopping  there  for  any  purpose 
ancillary  to  his  work.    But  we  are  told  that  there  were  admissions 
made  between  the  parties,  which  do  not  appear  on  the  judge's  note, 
that  men  in  the  position  of  the  applicant  were  not  paid  by  the  day 
or  week,  but  by  the  hour,  and  that  the  dinner  hour  was  exchuled 
from  the  computation  of  his  wages,  and  was  not  a  time  during 
which  he  was  earning  pay.    That  creates  a  difficulty,  or,  at  all  events, 
requires  consideration.     It  seems  to  me,  however,  tliat  if  the  dinner 
hour  can  be  brought  in  as  part  of  the  time  which  is  given  by  the 
workman  for  some  purpose  ancillary  to  his  work,  such  as  feeding 
himself,  which  is,  of  course,  essential  to  enable  him  to  do  his  work, 
.t  would  be  taking  too  technical  a  view  to  say  that  the  pause  in  the 
actual  course  of . his  work  for  the  purpose  of  eating  his  dinner  was 
a  break  in  his  employment  from  the  time  that  he  stopped  work  to 
the  time  at  which  he  began  again.     It  seems  to  me  that,  notwith- 
standing what  is  alleged  as  to  the  payment  being  for  the  hours  in 
which  the  applicant  was  actually  engaged  in  work  and  not  for  the 
time  in  which  he  took  his  meals,  we  must  take  a  broader  view,  and 
treat  him  as  continuing  in  the  employment  of  the  master  by  the  con- 


24  APPENDIX. 

sent  of  the  master,  inasmuch  as  it  is  for  the  master's  advantage  that 
the  workmen  should  have  an  opportunity  to  feed  themselves.  A 
workman  should  do  his  work  all  the  better  by  taking  his  meal  at  that 
time,  and  if  it  is  part  of  the  contract  betwe'en  him  and  his  master 
that  he  may  do  so  upon  the  works  instead  of  going  away,  that  may 
be  a  matter  of  mutual  convenience.  A  man  might,  for  instance,  live 
at  a  distance,  and  it  might  be  desirable,  from  the  master's  point  of 
view,  that  he  should  not  tire  himself  by  going  to  and  fro  for  his 
food  instead  of  reserving  his  strength  for  his  work.  It  does  not 
seem  to  me  that,  as  a  matter  of  law,  it  can  be  said  that,  when  sitting 
down  to  his  dinner,  the  applicant  had  ceased  to  be  in  his  master's 
employment.  From  the  mere  facts  that  he  was  not  paid  for  this 
particular  time  and  that  he  was  not  engaged  in  the  main  purpose 
of  his  work  it  can  not,  as  a  matter  of  law,  be  said  that  he  had  ceased 
to  be  in  the  employment  of  his  master.  The  accident  to  the  appli- 
cant can,  as  it  seems  to  me,  be  properly  said  to  have  arisen  out  of 
and  in  the  course  of  his  employment,  and,  that  being  so,  the  appeal 
must  be  allowed. 

Mathew,  L.  J.  I  am  of  the  same  opinion.  The  county  court 
judge  seems  to  have  been  under  the  impression  that  when  this  man 
sat  dow^n  to  eat  his  dinner  on  the  premises  he  ceased  to  be  in  the 
employment  of  his  master,  whatever  may  have  been  the  arrangement 
between  them.  It  appears  that  the  arrangement  as  to  wages  was 
that  the  man  should  be  paid  for  as  many  hours  as  he  was  actually 
at  work,  but  not  for  the  dinner  hour  in  the  middle  of  the  day.  It 
also  appears  that  he  was  not  obliged  to  leave  the  place  where  he 
was  working  and  obtain  shelter  and  food  elsewhere.  That  being 
the  case,  how  can  it  be  said  that  this  accident  did  not  occur  in  the 
course  of  his  employment?  The  learned  county  court  judge  seems 
to  have  thought  that  the  test  whether  the  employment  was  continu- 
ing at  the  time  when  the  accident  happened  was  whether  wages  were 
paid  for  that  time.  It  seems  to  me  that  under  the  circumstances  of 
this  case  the  wages  paid  to  the  applicant  covered  this  time,  although 
the  dinner  hour  was  not  taken  into  account  in  computing  the  amount 
I  do  not  think  it  possible  to  arrive  at  any  other  conclusion  than  that 
the  accident  happened  in  the  course  of  the  man's  employment.  It 
could  not  reasonably  be  held  that  he  had  broken  his  contract  of 
employment  when  he  ceased  to  work  in  the  dinner  hour.  I  agree 
that  the  appeal  must  be  allowed. 

Cozens-Hardv,  L.  J.  I  agree.  The  learned  judge  has  not 
found  in  very  clear  terms  what  were  the  precise  conditions  of  the 
employment.  I  gather,  however,  from  the  admissions  that  there  was 
a  contract  by  which  the  applicant  was  to  be  paid  at  the  rate  of  so 
much  an  hour  for  the  time  that  he  was  actually  at  work,  and  that 
it  was  a  term  of  the  contract  that  the  dinner  hour  might  be  spent 
either  on  or  off  the  premises.  If  it  had  been  part  of  the  contract,  as 
it  is  in  some  employment,  that  the  dinner  hour  should  be  taken  on 
the  premises,  there  could  not  have  been  a  doubt  that  an  accident 
occurring  during  the  dinner  hour  would  have  occurred  in  the  course 
of  the  employment,  because  by  the  contract  the  workman  would  be 


BLOVELT  v.   SAWYER.  25 

bound  to  be  on  the  premises.  In  my  view  it  can  make  no  difference 
if  the  fact  is  that  by  the  terms  of  the  particular  engagement  the 
workman  was  to  have  the  right,  if  so  minded,  to  get  his  dinner  on  the 
employer's  premises.  1  think  it  would  be  to  place  a  narrow  con- 
struction on  the  Act  if  we  held  that  the  accident  to  the  applicant  did 
not  occur  in  the  course  of  his  employment.  I  agree  that  the  appeal 
succeeds,  and  the  case  must  go  back  to  the  county  court.' 

Appeal  allowed. 

^Accord:  Morris  v.  Lambeth,  22  T.  L..  R.  22  (C.  A.  Eng.  1905;,  8  W. 
C.  C.  1 ;  and  In  re  Schatz  Bulletin  Ind.  Com.  of  Ohio  Vol.  l,No.  7,  p.  60.  So 
compensation  is  due  to  a  workman  who  is  injured  on  the  premises  while 
getting  a  drink  of  water  or  waiting  while  no  work  is  ready  to  be  done, 
Kccnan  v.  Flcmington  Coal  Co.,  5  Frascr  164  (Sc.  Ct.  Sess.  1903)  ;  Hender- 
son V.  Glasyozv,  2  Fraser  1127  (Sc.  Ct.  Sess.  1900)  ;  Earnshaw  v.  Railvjay  Co., 
115  L.  T.  J.  89,  5  W.  C.  C.  28  (Halifax  Co.  Ct.  1903)  ;  Tcrlecki  v.  Strauss. 
85  N.  J.  L.  454  (1914),  mill  girl,  after  she  had  stopped  work  and  left  her 
machine,  was  combing  the  wool  out  of  her  hair  preparatory  to  going  home, 
her  hair  got  caught  in  another  machine  and  she  was  injured;  Zabriskie  v. 
Erie  R.  R.,  85  N.  J.  L.  157  (1913),  workman  run  over  by  train  while  crossing 
the  tracks  to  reach  the  only  water  closet  provided  on  his  employer's  premises ; 
Hartman  v.  Mihvaukcc  Fuel  Co.,  Report  Wise.  Ind.  Com.  of  July  20,  1914, 
p.  64.  This  is  of  course  so  where  the  employe  is  a  sailor,  domestic  servant 
or  other  employes  required  to  pass  all  their  time  on  the  employer's  ship  or 
premises.  "1  have  no  doubt  that  the  leisure  of  a  sailor  on  board  a  vessel  is 
as  much  in  the  course  of  his  employment  as  active  work," — Fletcher  Moulton, 
L.  J.,  in  Marshall  v.  S.  S.  Wild  Rose,  L.  R.  1909,  2  K.  B.  46,  n.  49. 

As  to  the  effect  of  a  workman's  choice  of  an  unnecessarily  dangerous 
place  for  eating  his  meals,  etc.,  or  path  to  or  from  his  place  of  work,  see 
Brice.v.  Lloyd,  L.  R.  1909,  2  K.  B.  804,  2  B.  W.  C.  C.  26;  Thompson  v.  /•7t'»i- 
ington  Coal  Co.,  48  Sc.  L.  R.  740  (Ct.  Sessions  1911). 

But  the  master  is  not  liable  if  the  servant  is  injured  outside  the  master's 
premises  during  the  lunch  hour,  McKrill  v.  Hozvard  and  Jones,  2  B.  W.  C.  C. 
460  (London  Co.  Ct.  1909)^  Gilbert  v.  S.  S.  Nizam,  L.  R.  1910.  2  K.  B.  555. 
3  B.  W.  C.  C.  455,  or  during  a  temporary  cessation  from  his  employment  for 
the  purpose  of  satisfying  necessities  of  nature,  even  though  the  employer  has 
not  furnished  faculties  on  his  premises,  Cogdon  v.  Gas  Co.,  1  B.  W.  C.  C. 
156  (Sunderland  Co.  Ct.  1907).  Contra:  In  re  Sundinc,  note  1  to  Gone  v. 
Norton  Hill  Co.,  ante,  and  see  Nelson  v.  Belfast  Corp.,  42  Ir.  L.  T.  223  (C. 
A.  Ir.  1908),  1  B.  W.  C.  C.  158,  workman  injured  on  public  highway  while  on 
his  way  from  his  work  place  to  the  corporation  offices  where  he  had  to  go  to 
get  his  pay.  Compare  Martin  v.  Loviboud,  etc.,  L.  R.  1914,  2  K.  B.  227.  wh.cre 
compensation  was  awarded  to  a  drayman,  who  stopped,  while  on  his  regular 
round  of  calls,  at  a  public  house  to  get  a  drink,  leaving  his  dray  on  the  op- 
posite side  of  the  street,  while  on  his  way  back  to  the  dray  he  was  run  over 
and  killed. 

In  every  case  in  which  a  workman,  injured  wliile  coming  or  going  to 
work  or  while  engaged  in  doing  something  "ancillary"  to  his  employment, 
has  been  given  compensation,  the  injury  has  been  in  whole  or  in  part  one  due 
to  the  nature  or  condition  of  the  premises  or  vessel,  or  to  some  operation  of 
the  employer's  business  thereon,— in  a  word,  because  of  some  danger  mculent 
and  peculiar  to  tb'e  place  where  he  is  required  or  eni  tied  by  virtue  of  his 
contract  of  employment  to  be  for  these  purposes.  Sie  Farwell.  L.  J.,  in 
Gilbert  v.  S.  S.  Nizam  (1910),  2  K.  B.  555.  558,  3  B.  W.  C.  C.  455 :  "The  man 
who  is  crushed  by  a  falling  wall  on  his  employer's  premises  while  he  is  eat- 
ing his  dinner  recovers  compensation  because  he  is  entitled  to  be  on  the  spot 
by  virtue  of  his  contract  of  employment."  "If  he  (he  is  speaking  of  a  work- 
man in  a  deep  slate  quarry)  has  to  use  some  perilous  means  of  access  (or 
is  required  or  permitted  to  satisfy  his  natural  wants  in  a  dangerous  place), 


26  APPENDIX. 

GILMOUR  V.  DORMAN,  LONG  &  CO.,  LTD. 

Court  of  Appeal,  England,  1911.    4  Buttcrworth's  W.  C.  C.  279. 

An  appeal  by  the  employers  from  an  award  of  his  Honor  Judge 
Templer  of  the  County  Court  at  Middlesbrough. 

The  workman,  Gilmour,  was  employed  as  a  watchman  at  the 
employers'  Britannia  Steel  Works.  For  many  years  he  had  been  in 
the  habit  of  going  to  his  work  by  walking  along  a  footpath  which 
ran  over  some  vacant  land  belonging  to  the  employers,  and  then 
along  the  railway  line  of  the  North  Eastern  Railway.  In  March, 
1909,  as  he  was  going  to  work  by  this  route,  he  slipped  on  some  ice, 
and  broke  his  ankle.  He  received  half  wages  till  May  24,  1909, 
when  he  resumed  work.  He  was  dismissed  in  November,  19 10, 
and  thereupon  applied  for  compensation.  The  Judge  held  that,  as 
the  man  was  on  premises  of  his  employer  at  the  time,  and  was  on 
his  way  to  work,  he  was  constructively  in  the  employment  at  the 
time,  and  the  accident  accordingly  arose  in  the  course  of  the  employ- 
ment ;  he  awarded  compensation. 

Cozens-Hardy,  M.  R.  (after  stating  the  facts,  and  the  findings 
of  the  Judge).  With  great  respect  to  the  Judge,  I  am  unable  to 
accept  his  view.  The  facts  are  not  in  dispute.  The  inference  to 
be  drawn  from  them  is  a  question  of  law.  It  seems  to  me  that  the 
circumstance  that  the  property  in  the  vacant  land  was  vested  in  the 
employers  is  irrelevant.  Gilmour  was  not  employed  on  that  part 
of  their  property.  Moreover  he  had  no  right  to  go,  and  his  em- 
ployers could  not  confer  upon  him  any  right  to  go,  along  the  North 
Eastern  Railway  line.  Another  route  existed,  by  which  he  had 
ready  access  to  his  work.  I  can  not  regard  the  case  as  in  any  way 
different  from  the  case  where  a  man  slips  on  the  ice  on  a  public 
road,  a  quarter  of  a  mile  from  his  employer's  works.  It  has  been 
repeatedly  held  that  a  man  is  not  entitled  to  the  protection  of  the 
Act  when  on  his  way  from  his  home  to  the  works.  There  may  be 
some  difficulty  in  ascertaining  precisely  where  a  man's  employment 
begins.  Generally  speaking,  the  factory  gate  or  yard  indicates  the 
boundary.  Sometimes  there  may  be  a  sort  of  excrescence,  but  I 
am  not  prepared  to  hold  that  an  accident  which  occurred  in  a  field 
some  quarter  of  a  mile  distant,  and  separated  from  the  premises 
where  the  man  is  to  work  by  land  over  which  he  has  no  right  of 


the  dangers  which  he  runs  in  such  use  are  to  my  mind  incident  to  his  em- 
ployment just  the  same  as  those  he  runs  while  actually  working.  It  is  hy 
reason  of  the  employment  that  he  becomes  subject  to  those  risks." — Fletcher 
Moulton,  L.  J.,  in  Moore  v.  Manchester  Liners,  (1909)  1  K.  B.  417,  2  W.  C.  C. 
8!^.  89.  In  no  case  has  recovery  been  allowed  where  the  sole  cause  of  the 
injury  is  the  manner  in  which  the  servant  is  coming  or  going,  eating,  drink- 
ing or  resting, — as  where  a  servant  chokes  himself  while  at  dinner,  O'Connor, 
J.,  in  Cogdon  v.  Sunderland  Gas  Co.,  1  B.  W.  C.  C.  156  (1907). 


LEACH  V.  OAKLEY,  STREET  &.  CO.  27 

access,  can  be  deemed  to  have  arisen  in  the  course  of  his  employ- 
ment.   I  think  that  the  appeal  must  be  allowed.' 

Buckley  and  Kennedy,  L.  JJ.,  agreed. 

Appeal  allowed. 


KITCHENHAM  v.  THE  OWNERS  OF  THE  S.  S. 

"JOHANNESBURG" 

LEACH  V.  OAKLEY,  STREET  &  CO. 

Court  of  Appeal,  Ennland,  1910.     L.  R.  1911,  2  A'.  B.  523. 

An  appeal  by  the  employers  from  an  award  of  His  Honor 
Judge  Howland  Roberts,  of  the  County  Court  at  Brentford. 

An  appeal  by  the  employers  from  an  award  of  His  Honor 
Judge  Lumely  Smith,  of  the  City  of  London  Court. 

Fletcher  Moulton,  L.  J.  These  two  cases  raise  in  a  sharp 
and  clear  way  the  same  issues  as  were  dealt  with  in  this  Court  and 
in  the  House  of  Lords  in  the  case  of  Moore  v.  Manchester  Liners, 
Ltd.,  (1910)  A.  C.  498;  3  B.  W.  C.  C.  527.  In  that  case  the  appli- 
cant was  a  fireman  on  board  a  steamer  belonging  to  the  respondents. 
While  it  was  lying  at  Brooklyn  he  went  on  shore  for  the  purpose  of 
making  certain  necessary  purchases,  and  returned  to  the  ship  at 
night  to  sleep  there,  as  was  his  duty.  The  vessel's  deck  was  con- 
siderably higher  than  the  wharf,  and  access  was  obtained  by  a  lad- 
der fastened  to  the  ship.  As  he  was  mounting  this  ladder  his  foot 
slipped,  and  he  fell  between  the  ship  and  the  wharf,  and  was 
drowned.  Upon  the  special  facts  of  th^case  I  came  to  the  conclu- 
sion that  he  went  on  shore  with  leave,  and  the  majority  in  the  House 
of  Lords  took  the  same^view  of  the  facts  in  this  respect.  The  first 
and  by  far  the  most  important  issue  in  this  case  was  whether  the 
accident  occurred  ."in  the  course  of"  the  man's  employment.  The 
view  that  I  held  was  that  his  going  ashore  with  leave  did  not  create 
a  suspension  in  his  employment,  which  was  afifirmed  by  a  majority 
in  the  House  of  Lords.  The  other  view  was  that,  whether  or  not 
the  going  on  shore  was  a  breach  of  the  contract  of  service,  it  cre- 
ated a  suspension  of  the  employment,  and  that  that  service  only  re- 
commenced when  the  sailor  had  got  on  board  the  ship  again.  I  con- 
sider it,  therefore,  to  be  settled  that  when  a  ship  is  in  port,  and  a 
sailor  goes  on  shore  with  leave,  his  employment  is  not  interrupted 
thereby.  The  considerations  on  which  this  conclusion  rests  are  dealt 
with  at  length  in  my  judgment  in  the  case. 

The  second  issue  was  whether  the  accident  arose  "out  of"  his 
employment.     In  the  same  case  this  issue  offered  no  difficulty  to  my 


\4ccord:  WilUams  v.  Smith,  108  L.  T.  200  (C.  A.  Eng.  1913).  6  R.  \V. 
C.  C.  102,  where  a  workman  was  injured  upon  a  path  on  his  employer's 
land  open  to  the  puhlic  wnerally  as  well  as  to  employes  ;  and  Hills  v.  Blair, 
148  N.  W.  243  (Mich.  1914),  memher  of  section  crew  run  over  while  walk- 
ing on  his  employer's  tracks  950  feet  from  his  place  of  work,  it  heing  possihle 
for  him  to  turn  off  into  a  public  highway  at  a  point  close  to  such  work  place. 


28  APPENDIX. 

mind  when  once  it  was  decided  that  the  employment  was  continuous 
and  was  not  interrupted  by  the  visit  to  the  shore.     But  although  the 
decision  of  this,  as  a  separate  issue,  presented  no  difficulties  in  that 
case,  it  is  in  its  essence  an  issue  depending  on  very  different  matters 
from  those  which  decide  whether  the  accident  arises  in  the  course 
of  the  employment.    It  is  not  dependent  on  whether  the  seaman  is 
on  board  the  vessel  or  not.     A  seaman  would  be  perfectly  entitled 
to  occupy  his  hours  of  leisure  in  playing  leapfrog  or  skylarking  if 
he  did  not  thereby  break  any  rules.     But  an  accident  that  occurs  to 
him  through  his  so  doing  might  not  be  an  accident  arising  out  of 
his  employment.    Similarly,  if  a  seaman  went  on  shore  in  his  hours 
of  leisure  with  leave  and  got  injured  in  the  traffic,  that  would  not 
be  an  accident  arising  out  of  his  employment.     By  going  on  shore 
with  leave  the  seaman  does  not  interrupt  the  course  of  his  employ- 
ment, but  any  accident  that  occurs  during  the  period  of  his  being 
on  shore  is  generally,  if  not  necessarily,  due  to  a  danger  to  which 
he  is  exposed  as  a  member  of  the  public,  and  not  as  one  of  the  crew 
of  the  ship,  and  therefore  is  one  which  does  not  "arise  out  of  his 
employment."     But  if,  whether  in  his  hours  of  leisure  or  not,  it 
becomes  necessary  for  him,  in  fulfilment  of  his  employment,  to  get 
on  board  his  vessel,  an  accident  occurring  in  his  doing  so  is  nor- 
mally an  accident  arising  out  of  his  employment,  because  it  is  due  to 
a  danger  incidental  to  his  service  in  that  ship.   In  the  cases  before  us 
the  accident  occurred  on  the  return  of  the  seaman  to  the  ship  im- 
mediately prior  to  his  actually  getting  on  board.    This  is  the  critical 
moment  when  the  dangers  to  which  he  is  exposed  change  from  being 
of  the  one  class  to  being  of  the  other  class,  and  it  will  frequently  be 
a  difficult  task  to  draw  the  line  between  the  two.    But  I  do  not  think 
it  difficult  to  lay  down  the  general  principle  by  which  our  decisions 
ought  to  be  guided.    The  return  to  the  ship  is  in  the  course  of  his 
employment,  but  the  risks  do  not  become  risks  arising  out  of  his 
employment  until  he  has  to  do  something  specifically  connected  with 
his  employment  on  the  ship.     Thus,  if  the  risk  is  one  due  to  the 
means  of  access  to  the  ship,  as  in  Moore  v.  Manchester  Liners,  Ltd. 
(supra),  the  accident  is  rightly  said  to  arise  out  of  his  employment: 
but  if  the  accident  is  shown  to  arise  from  something  not  specifically 
connected  with  the  ship  it  can  not  be  said  to  arise  out  of  his  em- 
ployment.    I  do  not  think  that  the  dividing  line  is  when  he  actually 
touches  the  ship  or  the  special  means  of  access  thereto.     For  in- 
stance, if  it  was  shown  that  when  the  sailor  returned  to  the  ship 
there  was  a  dense  fog,  and  that  in  trying  to  find  the  gangway,  which 
I   will   suppose   was  not  lighted,  he   fell   into  the  water  and  was 
drowned,  I  think  that  the  accident  \vould  arise  out  of  his  employ- 
ment.    But  if  all  that  is  shown  is  that  it  occurred  during  his  return 
to  the  ship,  but  while  he  was  still  on  shore,  and  before  he  had  taken 
any  specific  step  toward  getting  on  board  the  vessel,  I  think  that  it 
would  not  thereby  be  established  that  the  accident  arose  out  of  his 
employment.     In  my  opinion  the  facts  of  the  two  cases  which  arc 
before  us  for  decision  place  them  respectively  on  the  one  and  on  the 
other  side  of  this  narrow  dividing  line. 


LEACH  V.  OAKLEY,  STREET  &  CO.  2y 

(b)  Leach  v.  Oakley,  Street  and  Co. 

In  this  case  another  vessel  was  lying  between  the  Portslade, 
which  was  the  vessel  on  which  the  seaman  served,  and  the  whari, 
and  access  to  the  Portslade  was  by  means  of  a  gangway  placed  be- 
tween it  and  the  other  ship.  The  deceased  was  returning  to  the  ship 
after  going  on  shore  with  leave,  and  he  arrived  at  and  passed  on 
to  this  gangway  when  the  accident  occurred.  It  would  seem  that 
the  gangway  slipped  and  turned  upside  down.  The  man  fell  into 
the  water  and  was  drowned.  This  case  is  indistinguishable  from 
Moore  v.  Manchester  Liners,  Ltd.  (supra).  The  applicant  is  en- 
titled to  succeed,  and  the  appeal  must  be  dismissed  with  costs. 

(a)  Kitchenham  v.  The  Ozvncrs  of  the  Steamsliip  "Johannes- 
burg." 

In  this  case  the  access  to  the  ship  was  by  a  gangway  which  led 
from  the  wharf  to  the  ship.  It  was  sufficiently  lit  by  a  hanging  lamp 
on  the  davits  and  a  light  on  the  quay  at  the  shore  end,  and  it  was 
provided  with  guide  ropes.  The  evidence  shows  that  the  sailor  on 
returning  to  the  ship,  after  being  absent  with  leave,  came  upon  the 
wharf  and  walked  toward  the  ship's  gangway.  It  was  not  shown 
that  he  ever  reached  that  gangway,  and  from  the  evidence  of  the 
ship's  watchman,  to  the  effect  that  he  did  not  hear  any  one  on  the 
gangway,  I  should  conclude  that  he  never  did  reach  it.  A  splash  was 
heard  a  little  abaft  the  inboard  end  of  the  gangway,  and  there  was  a 
cry  from  some  person  unknown  of  "Man  overboard."  This  is  all 
the  material  evidence.  In  my  opinion  this  is  not  sufficient  to  nega- 
tive the  possibility  that  the  accident  was  due  to  an  accidental  slij* 
on  the  wharf  or  to  the  sailor  having  gone  to  the  edge  of  the  wharf 
for  his  own  purposes  (perhaps  to  look  over  in  order  to  see  the  state 
of  the  tide)  and  fallen  over.  It  is  not  the'duty  of  the  Court  to  specu- 
late on  such  matters.  It  is  for  the  applicant  to  prove  that  the  acci- 
dent arose  "out  of"  the  employment,  and  if  the  evidence  is  not  suf- 
ficient to  establish  this  the  claim  fails.  I  am  of  opinion  that  the 
evidence  in  this  case  falls  short  of  what  is  necessary,  and  though 
one  may  think  it  possible,  and  even  probable,  that  he  was  going  on 
to  the  gangway  when  the  accident  occurred,  this  is  not  established 
with  that  reasonable  certainty  which  the  Court  requires  from  a  plain- 
tiff in  the  proof  of  his  case.  I  am,  therefore,  of  opinion  that  this 
appeal  must  be  allowed  with  costs. 

Farwell,  L.  J.,  read  the  following  Judgment : — 

(b)  Leach  v.  Oakley,  Street  and  Co. 

The  County  Court  Judge  has  decided  this  case  on  the  ground 
that  it  is  indistinguishable  from  Moore  v.  Manchester  Liners 
{supra). 

It  becomes  necessary,  therefore,  to  consider  exactly  what  that 
case  did  decide.  The  facts  there  were  that  the  sailor  had  gone 
ashore  with  leave,  as  the  House  of  Lords  determined,  and  in  order 
to  get  on  board  his  ship  on  his  return  had  to  climb  up  a  ladder  on 
to  the  deck.  This  was  an  ordinary  open  ladder,  and  was  attached 
at  the  top  to  the  ship  in  such  a  way  as  to  allow  play  for  rise  and 
fall  of  the  ship  on  the  tide.     The  lower  end  rested  on  the  quay. 


30  APPENDIX. 

The  sailor  fell  off  this  ladder  and  was  drowned.  The  majority  in 
this  Covirt  held  that  it  was  immaterial  whether  he  had  gone  ashore 
with  or  without  leave,  for  the  accident  happened  before  he  got  on 
board,  and  although  he  was  very  near  the  vessel  and  on  his  way 
back,  the  result  must  be  the  same  as  if  the  accident  had  happened 
while  he  was  on  the  road,  or  on  the. quay  itself,  (1909)  i  K.  B.  417 ; 
2  B.  W.  C.  C.  87.  In  effect,  the  Court  held  that  the  ladder  was  part 
of  the  quay,  not  part  of  the  ship,  or,  to  use  another  phrase,  that  the 
ladder  was  not  within  the  sphere  of  the  man's  duties.  It  appears  to 
me  that  the  question  dealt  with  by  the  House  of  Lords  was  whether 
the  man  returned  to  his  employment  or  not.  The  first  question  in 
all  cases  of  this  sort  is,  What  is  the  workman's  employment?  It 
may  be  continuous,  as  that  of  a  sailor  on  a  voyage,  or  a  domestic 
servant,  in  either  of  which  cases,  unless  and  until  the  continuity  is 
broken  or  suspended,  any  accident  necessarily  arises  "in  the  course 
of  the  employment,"  or  it  may  be  discontinued,  in  which  case  the 
nature  of  the  express  employment  and  the  incidents  that  are  reason- 
ably necessary  or  proper  for  the  due  performance  thereof  have  to 
be  taken  into  consideration.  This  consideration  also  arises  when  a 
continuous  employment  is  temporarily  discontinued  either  with  or 
without  leave.  The  employment  of  a  miner  whose  duty  is  to  get 
coal  is  not  confined  to  his  work  with  the  pick,  but  includes  the  rea- 
sonable and  proper  use  of  all  matters  incidental  to  the  due  discharge 
of  his  duty,  e.  g.  the  use  in  a  reasonable  way  of  means  of  access  over 
the  employer's  premises  for  going  and  returning,  visiting  the  office 
for  his  pay  or  going  to  a  proper  place  on  the  premises  to  eat 
his  dinner;  he  is  authorized  and  entitled,  and  therefore  em- 
ployed to  do  all  these  matters,  but  when  he  has  once  left  the 
ambit  of  such  employment,  e.  g.  by  entering  on  the  high-road 
(unless  of  course  he  has  been  sent  by  his  employer  on  some 
business  of  the  employer),  his  employment  ceases  and  nothing  that 
happens  to  him  is  "in  the  course  of  his  employment,"  so  in  the 
case  of  a  continuous  employment  which  is  discontinued,  the  same 
question  arises  as  to  the  point  where  the  employment  ceased,  and 
where  it  is  taken  up  again.  The  sailor  who  goes  on  shore  on  a  spree, 
whether  with  or  without  leave,  while  away  from  the  ship,  is  out  for 
his  own  amusement,  and  is  not  in  the  employment  of  his  master; 
his  master  may  allow  him  to  leave  his  work  to  go  for  a  spree,  but  he 
can  not  be  said  to  employ  him  to  go  for  a  spree,  and  when  the  sailor 
returns,  the  question  arises :  at  what  point  does  he  reach  the  ambit 
of  his  employment?  It  is  immaterial  whether  he  goes  with  leave 
or  without ;  it  is  not  a  question  of  misconduct  at  all ;  it  is  whether  (to 
use  the  Lord  Chancellor's  phrase  in  the  Wild  Rose  Case,  (1910) 
A.  C.  at  p.  532),  he  was  there  in  the  course  of  duty  or  in  the  course 
of  returning  to  it. 

(a)  Kitchenham  v.  The  Ozvncrs  of  the  Steamship  "Johannes- 
burg." 

To  apply  this  to  the  case  of  Kitchenham  v.  S.  S.  "Johannes- 
burg" (Owners  of),  the  man  was  not  in  the  course  of  his  employ- 
ment when  he  went  ashore  to  send  a  telegram  to  his  wife :  he  was  on 


DONOVAN  S  CASE.  3 1 

his  own  private  business:  if  he  had  reached  the  gangway  and  had 
fallen  off  it,  he  would  have  returned  to  the  ambit  of  his  employment 
within  the  Manchester  Liner's  Case;  but  he  had  not,  and  so,  for  this 
purpose  it  is  immaterial  whether  he  was  one  yard  or  one  mile  from 
the  gangway  when  he  fell.  The  case  is  distinguishable  from  Moore 
V.  Manchester  Liners,  and  this  appeal  must  be  allowed  with  costs. 

Cozens-Hardy,  M.  R.,  expressed  concurrence  with  the  judg- 
ments delivered. 

Appeal  allowed  in  (a). 

Appeal  dismissed  in  (b).^ 


DONOVAN'S  CASE. 

Supreme  Judicial  Court  of  Massachusetts,  1914.     217  Mass.  76. 

Sheldon,  J.  The  contest  here  is  between  Donovan,  an  em- 
ploye of  one  McGeevey.  and  an  insurance  company  which  had  in- 
sured McGeevey.  The  point  in  dispute  is  whether  Donovan's  injury 
arose  out  of  and  in  the  course  of  his  employment.  This  must  be 
decided  upon  the  facts  found  by  the  Industrial  Accident  Board  in 
its  review  of  the  report  of  the  committee  of  arbitration. 

Donovan  was  employed  by  McGeevey  in  cleaning  out  catch 
basins  at  a  place  about  two  miles  from  his  home.  It  had  been  and 
was  his  custom,  in  common  with  other  employes  and  with  the  kno\yl- 
edge  and  consent  of  his  employer,  to  ride  to  and  from  the  vicinity 
of  the  catch  basins  in  a  wagon  furnished  by  his  employer,  the  wagon 
meeting  the  employes  on  the  street  and  ;he  employer  being  notified 
if  any  of  the  employes  failed  to  report  for  work  at  the  beginning  of 
the  day.  The  wagon  was  at  the  service  of  the  employes  at  the  end 
of  the  day,  and  they  might  ride  in  it  back  to  the  employer's  barn  if 
they  wished.  Donovan  was  injured  while  so  riding  in  this  wagon 
at  the  end  of  his  day's  work,  and  the  board  has  found  that  his  trans- 
portation on  the  wagon  was  "incidental  to  his  employment."  antl 
"therefore"  arose  "out  of  and  in  the  course  of  said  employment." 
The  language  of  this  last  finding  is  a  little  obscure;  but  we  treat  it, 
as  both  counsel  and  also  the  Superior  Court  have  treated  it.  as  being 
an  inference  that  Donovan's  injury  arose  out  of  and  in  the  course 
of  his  employment,  drawn  from  the  other  facts  stated,  including  the 


'Where  a  part  of  the  dock,  such  as  a  ladder  fixed  in  its  wall  is  "specific- 
ally appropriated  to  the  access,"  to  a  particular  ship  and  tliat  ship  only  a 
sailor  injured  thereon  while  on  his  way  from  tlie  ship  to  the  shore,  after  his 
dav's  work  was  over,  was  held  entitled  to  compensation  in  U'clihrr  v.  M  avs- 
brough,  30  T.  L.  R.  615  (House  of  Lords  1914),  alitcr.  where  the  injury 
occurs  on  a  "dolphin"  or  float,  which  heing  a  large  structure  was  a  means  of 
access  to  the  quay  from  other  vessels  as  well  as  that  on  which  the  injured 
sailor  was  employed.  Cook  v.  5.  5".  Montreal,  29  T.  L.  R.  233   (C.  .\.  F.ng. 

1913).  .  ,  ^  -,         •.     1- 

As  to  when  a  sailor  or  domestic  or  club  servant  temporarily  quits  Ins 
employment  and  when  he  returns  to  it,  see  25  H.  L.  R.  407  to  411,  where  the 
cases  down  to  1911  arc  collected  and  discussed. 


32  APPENDIX. 

fact  that  the  transportation  was  "incidental  to  his  employment." 
The  question  to  be  decided  is  therefore  whether  this  inference  could 
be  drawn  from  those  facts ;  for  the  facts  themselves  now  can  not  be 
inquired  into.    St.  1912,  c.  571,  §  14. 

There  have  been  several  decisions  in  England  as  to  when  and 
how  far  an  employe  can  be  said  to  have  been  in  the  employ  of  his 
master,  while  traveling  to  and  from  his  work  in  a  vehicle  or  means 
of  conveyance  provided  by  the  latter,  and  how  far  injuries  received 
in  such  a  conveyance  can  be  said  to  have  arisen  out  of  and  in  the 
course  of  the  employment.  Many  of  these  cases  have  been  cited 
and  discussed  by  Professor  Bohlen  in  25  Harvard  Law  Review, 
et  scq.  From  his  discussion  and  the  cases  referred  to  by  him,  and 
from  the  later,  decisions  of  the  English  courts,  the  rule  has  been 
established,  as  we  consider  in  accordance  with  sound  reason,  that 
the  employer's  liability  in  such  cases  depends  upon  whether  the 
conveyance  has  been  provided  by  him,  after  the  real  beginning  of 
the  employment,  in  compliance  with  one  of  the  implied  or  express 
terms  of  the  contract  of  employment,  for  the  mere  use  of  the  em- 
ployes, and  is  one  which  the  employes  are  required,  or  as  a  matter 
of  right  are  permitted,  to  use  by  virtue  of  that  contract.  See  Davics 
V.  Rhymney  Iron  Co.,  16  T.  L.  R.  329;  Holmes  v.  Great  Northern 
Railway,  (1900)  2  Q.  B.  409;  Whithread  v.  Arnold,  99  L.  T.  103; 
Cremins  v.  Guest,  Keen  &  Nettlefolds,  (1908)  i  K.  B.  469;  Gane  v. 
Norton  Hill  Colliery  Co.,  (1909)  2  K.  B.  539;  Hoskins  v.  /.  Lan- 
caster, 3  B.  W.  C.  C.  476;  Parker  v.  Pout,  105  L.  T.  493 ;  Walters  v. 
Staveley  Coal  &  Iron  Co.,  105  L.  T.  119,  and  4  B.  W.  C.  C.  89  and 
303  ;  Greene  v.  SJiazv,  (1912)  2  Ir.  430,  and  5  B.  W.  C.  C.  530;  Mole 
V.  IVadzvorth,  6  B.  W.  C.  C.  128;  Edwards  v.  Wingham  Agricultural 
Implements  Co.,  (1913)  3  K.  B.  596,  and  6  B.  W.  C.  C.  511 ;  Walton 
V.  Tredegar  Iron  &  Coal  Co.,  6  B.  W.  C.  C.  592. 

The  finding  of  the  Industrial  Accident  Board  that  Donovan's 
transportation  was  "incidental  to  his  employment"  fairly  means,  in 
the  connection  in  which  it  was  used,  that  it  was  one  of  the  incidents 
of  his  employment,  that  it  was  an  accessory,  collateral  or  subsidiary 
part  of  contract  of  employment,  something  added  to  the  principal 
part  of  that  contract  as  a  minor,  but  none  the  less  a  real  feature  or 
detail  of  the  contract.  Whatever  has  been  uniformly  done  in  the 
execution  of  such  a  contract  by  both  of  the  parties  to  it  well  may 
be  regarded  as  having  been  adopted  by  them  as  one  of  its  terms. 
Especially  is  this  so  where  none  of  the  provisions  of  the  contract 
has  been  shown  by  either  party,  but  everything  is  left  to  be  inferred 
from  their  conduct.  That  was  the  reasoning  of  this  court  in  such 
cases  as  Gilshannon  v.  Stony  Brook  Railroad,  10  Cush.  228,  231 ; 
McGuirk  V.  Shattuck,  160  Mass.  45,  47;  Boyle  v.  Columbian  Fire 
Proofing  Co.,  182  Mass.  93.  98;  Kilduff  v.  Boston  Elevated  Railway, 
195  Mass.  307 ;  and  Feneff  v.  Boston  &  Maine  Railroad,  196  Mass. 

575>  577-  ,        .  ,   .     .J 

Accordingly  we  are  of  the  opinion  that  the  Industrial  Accident 


REED  V.  GREAT  WESTERN  RY.  CO.  33 

Board  had  the  right  to  draw  the  inference  that  Donovan's  injury 
arose  out  of  and  in  consequence  of  his  employment. 

Under  our  own  decisions,  Donovan  it  the  time  of  his  injury  was 
m  the  employ  of  McGeevey  and  was  a  fellow  servant  with  the  driver 
of  the  wagon.  O'Brien  v.  Boston  &  Albany  Railroad,  138  Mass. 
387.  See  also  the  cases  last  above  cited.  It  is  not  easy  to  supi)ose 
that  the  Legislature  intended  that  one  who  was  under  the  disabilities 
of  a  servant  should  be  excluded  arbitrarily  from  the  benelits  which 
it  undertook  to  give  to  all  employes.  The  provisions  of  the  act  are 
to  be  construed  broadly  rather  than  narrowly.  Coaklcy's  Case,  216 
Mass.  71,  73- 

The  decree  of  the  Superior  Court  must  be  affirmed  ;  and  it  is 

So  ordered.' 


REED  V.  GREAT  WESTERN  RAILWAY  COMPAXY. 

House  of  Lords,  1908.    99  Lazv  Times  781. 

The  Lord  Chancellor  (Loreburn).  My  Lords :  In  this  case 
one  Reed,  an  engine-driver  in  charge  of  his  engine,  got  down  from 
it  while  it  was  at  rest  and  crossed  a  siding  to  receive  from  a  friend 
a  book  unconnected  with  his  duties.  On  returning  he  was  knocked 
down  by  a  waggon  then  being  shunted  and  killed.  The  only  ques- 
tion in  dispute  was  whether  or  not  the  accident  which  killed  him 
was  one  "arising  out  of  and  in  the  course  of  his  employment."  I 
can  not  think  that  it  was.  I  agree  that  labour  is  often  intermittent. 
If  a  man  is  in  the  place  of  his  employment  and  during  its  hours  uses 
such  intervals  otherwise  than  in  working,  and  while  doing  so  is  in- 
jured by  one  of  the  dangers  to  which  the  employment  exposes  him, 
that  may  be  an  accident  within  the  statute.  He  may  be  in  such  case 
required  to  be  in  attendance  and  in  that  respect  engaged  on  his  duty, 


^Accord:  Richards  v.  Morris,  110  L.  T.  496  (C.  A.  Eng.  1914).  ahtcr, 
where  a  farm  laborer  swims  a  stream  between  two  farms  to  save  himself  the 
trouble  of  going  by  a  bridge,  the  boat  provided  not  being  at  tlie  time  availa- 
ble, Guilfoxle  v.  Fcnncssx,  47  Ir.  L.  T.  19  (C.  A.  Ir.  1912),  6  B.  \y.  C  C  451 

Compare  Parker  v."  Pont,  105  L.  T.  493  (C.  A.  hng.  1911)  5  B. 
W.  C.  C.  45,  where  the  employe  was  invited  by  a  fellow-employe  to  ride  in  a 
vehicle  driven  by  the  latter  but  owned  Ijy  the  employer;  and  Crozv  v.  Los  An- 
geles Ry.  Co.,  Decision  of  Ind.  Ace.  Com.  of  California,  Vol.  1,  Iso.  21.  p.  42 
(1914),  where  a  motorman  was  injured  while  riding  to  his  place  of  work  on 
a  car  of  his  employer's  company,  which  he  was  not  required  to  ride  upon, 
though  permitted  to  do  so  free  of  charge. 

As  to  whether  the  workman  puts  himself  out  of  the  course  of  his  em- 
ployment by  taking'  unnecessary  risks  while  being  carried  to  or  from  his 
work,  compare  Watkins  v.  Guest,  Keen  &  Nettlefolds,  106  L.  T.  818  (C.  A. 
Eng.  1912),  5  B.  W.  C.  C.  307,  where  compensation  was  awarded  to  a  work- 
man who,  in  his  hurry  to  aliglit.  contrary  to  orders,  stood  on  the  foot-board 
of  the  car,  whence  he  was  pushed  off  some  sixty  yards  from  Ins  destina- 
tion, with  Price  v.  Tredegar  Iron  etc.  Co..  30  T.  L.  R.  583  (C.  A.  Eng.  1914). 
where  compensation  was  denied  a  workman,  who  in  his  hurry  to  get  home, 
jumped  from  the  train  before  it  reached  the  stopping  place. 


34  APPENDIX. 

though  not  actually  doing  work.  But  here  this  man  was  where  he 
was  not  entitled  to  be,  and  was  not  working,  but  pleasing  himself. 
It  is  not  that  he  thereby  violated  a  rule,  but  that  the  accident  did  not 
arise  out  of  or  take  place  in  the  course  of  the  employment  at  all. 
It  took  place  while  for  the  moment  he  quitted  his  employment.  No 
doubt  allowance  must  be  made  for  the  habits  of  business,  and  the 
Act  must  be  applied  reasonably ;  but  in  this  case  I  can  see  no  ground 
for  allowing  compensation. 

Lord  Ashbourne  concurred. 

Lord  Macnaghten.  My  Lords :  I  am  of  the  same  opinion.  I 
think  that  the  judgment  of  the  Court  of  Appeal  was  right,  for  the 
reasons  given  by  the  Master  of  the  Rolls.  I  agree  with  the  Master 
of  the  Rolls  in  thinking  that  in  all  these  cases  it  is  incumbent  upon 
the  claimant  to  make  out  that  the  accident  in  respect  of  which  com- 
pensation is  claimed  arose  out  of  and  in  the  course  of  the  injured 
man's  employment,  not  upon  the  employer  to  prove  the  contrary. 
But  here  the  evidence  shows  that  it  was  for  a  purpose  of  his  own, 
and  not  in  the  execution  of  his  duty  or  in  the  interest  of  his  em- 
ployers, that  the  injured  man  exposed  himself  to  the  risk  which 
caused  his  death.  He  had  been  warned  against  doing  the  very  thing 
which  he  ventured  to  do.  He  was,  of  course,  wrong  in  disregarding 
the  injunctions  of  his  employers.  But  it  is  not  on  the  ground  of 
misconduct  that  his  dependents  are  now  without  remedy.  At  the 
time  when  the  accident  happened  the  man  was  about  his  own  busi- 
ness, not  about  the  business  of  his  employers.  For  the  moment  he 
had  put  himself  outside  the  area  of  protection  which  the  Legisla- 
ture has  carefully  marked  out.  The  case,  in  my  opinion,  is  not 
within  the  scope  of  the  enactment  at  all.  I  think  that  the  appeal 
must  be  dismissed  with  costs. 

The  Lord  Chancellor.  My  Lords :  Lord  James  of  Hereford, 
who  heard  the  arguments,  but  is  not  able  to  be  present  to-day,  desires 
me  to  say  that  he  concurs  in  the  motion  which  has  been  made. 

Judgment  appealed  from  affirmed,  and  appeal  dismissed  with 
costs.  ^ 


^Accord:  Smith  v.  Lancashire  &  Yorkshire  Ry.,  (1899)  1  Q.  B.  141, 
1  W.  C.  C.  1,  in  which  a  railway  porter  got  on  the  foot-board  of  a 
moving  train  to  speak  to  a  friend  and  was  there  injured;  Williavis  v.  JVigan 
Coal  and  Iron  Co.,  3  B.  W.  C.  C.  65  (C.  A.  1909),  engine  driver  boarding 
slowly  moving  engine  to  give  another  driver  wages  paid  by  mistake  to  the 
claimant;  Hendry  v.  Caledonian  R.  Co.,  (1907)  Scot.  Sess.  Cas.  732,  44  Scot. 
L.  Rep.  584,  fish  porter  going  over  railroad  tracks  to  inquire  how  many  fish 
trucks  were  expected;  Callaghan  V.  Maxzvcll,  2  Fraser  420  (Scot.  Ct.  Sess. 
1900),  girl  leaving  her  place  to  speak  to  a  fellow  workgirl,  she  had  been  for- 
bidden to  leave  and  the  danger  of  so  doing  had  been  pointed  out  to  her; 
Warren  v.  Hedley  Collieries,  6  B.  W.  C.  C.  (C.  A.  Eng.  1913),  mine  roof  fell 
on  miner,  while  on  his  way  back  from  asking  a  fellow  miner  the  time ;  and 
see  the  case  of  Curtis  v.  Talbot,  5  B.  W.  C.  C.  41  (C.  A.  1911),  surgeon  vol- 
unteering as  subject  of  scientific  experiment;  and  In  re  Procknau,  and  In  re 
Mitchell,  Bulletin  Ind.  Com.  of  Ohio,  Vol.  1,  No.  7,  pp.  66  and  56. 


J 


LOSH  V.  EVANS  &  CO.  35 

LOSH  V.  EVANS  &  COMPANY. 

Court  of  Appeal,  England,  1902.    19  Times  Law  Reports  142. 

Collins,  jM.  R.  This  is  an  appeal  from  the  decision  of  the 
County  Court  Judge  that  the  applicant  was  not  entitled  to  compen- 
sation, on  the  ground  that  the  accident  did  not  arise  out  of  and  in 
the  course  of  her  employment.  The  applicant  was  employed  in  a 
colliery,  and  her  duty  was  to  pick  dirt  out  of  coal  passing  along  a 
band  which  was  actuated  by  machinery.  The  man  in  charge  of  the 
engine  was  temporarily  absent,  and,  the  engine  having  been  stopped, 
and  a  signal  having  been  given  to  start  it  again,  the  applicant  took 
upon  herself  to  attempt  to  start  it,  and  in  doing  so  she  was  caught 
in  the  machinery  and  injured.  The  question  was,  whether  under 
those  circumstances  her  employers  could  be  held  liable  to  pay  her 
compensation.  In  his  opinion  the  question  whether  the  accident 
arose  out  of  and  in  the  course  of  the  applicant's  employment  was 
purely  a  question  of  fact.  One  principle  which  had  been  established 
beyond  doubt  with  regard  to  the  Workmen's  Compensation  Act  was 
that,  where  the  County  Court  Judge  decided  a  matter  of  fact  on  evi- 
dence which  was  capable  of  supporting  his  finding,  then,  unless  this 
involved  a  misdirection  on  a  matter  of  law,  his  decision  could  not 
be  questioned  in  this  Court.  The  County  Court  Judge  in  this  case 
had,  on  the  invitation  of  the  Court,  given  his  reasons  for  his  de- 
cision. The  County  Court  Judge  found  as  a  fact  that  it  was  no  part 
of  the  applicant's  duty  to  touch  the  engine.  It  seemed  to  be  clear 
that  an  employer  was  at  liberty  to  define  the  sphere  of  duty  of  his 
workmen,  and  to  divide  the  labor  of  his  workmen  into  unintelligent 
labor  and  skilled  labor.^  *Here  the  applicant's  own  evidence  did  not 
furnish  any  suggestion  that  her  si)here  of  duty  extended  beyond  the 
simple  work  of  picking  dirt  out  of  the  coal.  The  case  of  Loi^'C  y. 
Pearson,^  was  an  authority  to  show  that  a  workman  employed  in 
one  sphere  of  work  could  not  make  his  master  liable  for  injuries  ac- 
cidentally sustained  by  him  while  acting  in  another  sphere.  The 
question  whether  and  how  far  one  sphere  was  marked  off  from  an- 
other was  a  question  of  fact.  In  his  opinion  there  was  evidence 
justifying  the  County  Court  Judge  in  finding  as  he  had  done,  and  his 
decision  must  be  upheld.^ 


^  Compare  the  language  of  the  same  justice  in  Whitehead  v.  Rcedcr,  L.  R. 
1901,  2  K.  B.  48,  3  W.  C.  C.  40.  "It  is  necessary  to  see  exactly  what  is  the 
sphere  of  the  workman's  employment,  and,  in  my  judgment,  it  is  and  must 
be  competent  for  a  master  to  define  and  limit  what  the  sphere  of  employ- 
ment is." 

'L.  R.  1899,  1  0-  B.  261.  1  W.  C.  C.  5.  a  boy  employed  in  a  pottery  to 
make  balls  of  clay  and  hand  them  to  a  woman  at  work  on  a  macliinc.  though 
forbidden  to  touch  the  machinery,  attempted  during  the  woman's  absence  to 
clean  the  machine. 

\4ccnrd:  Edwards  v.  International  Coal  Co..  5  W.  C.  C.  21  (C.  h.  Eng. 
1899)  ;  compare  Whitehead  v.  Rrcdrr.  1901.  2  K.  B.  48.  ?,  W.  C.  C.  40:  Gnslan 
V.  Gillies.  1907,  Sess.  Cases  68  (Sc.  Ct.  Sess.)  :  Mencics  v.  McQuibban.2  Fraser 
732,  (Sc.  Ct.  Sess.  1900),  and  IVendt  v.  Ind.  Ins.  Co.,  141   Pac.  311    ^Wash, 


^6  APPENDIX. 

RoMER,  L.  J.,  agreed  with  this  judgment. 

Mathew,  L.  J.,  said  he  regretted  that  he  could  not  concur  with 
the  judgment  of  the  other  members  of  the  Court.  The  County 
Court  Judge  in  the  reasons  which  he  gave  for  his  decision,  said  that 
it  was  no  part  of  the  duty  of  the  apphcant  to  touch  or  interfere  with 
the  engine.  But  after  reading  all  the  evidence  in  the  case,  he  could 
not  see  that  there  was  any  evidence  of  the  existence  of  any  duty  on 
the  part  of  the  applicant  not  to  stop  or  start  the  engine.  She  was 
not  told  in  express  terms,  at  the  time  when  she  was  engaged,  that 
she  was  expected  not  to  go  to  the  engine  to  stop  it  or  to  start  it.  It 
was  admitted  that  she  never  received  any  precise  directions  on  the 
matter.  The  respondents  had  the  means  of  knowing  what  ordinarily 
went  on  w^hen  the  girls  were  at  work,  and  the  evidence  showed  that 
it  was  the  usual  practice,  when  Dixon  was  away,  for  the  girls  to 
obey  the  signals,  and  stop  or  start  the  engine.*  In  his  opinion  there 
was  no  evidence  sufficient  to  justify  the  findings  of  the  County  Court 
Judge,  and  therefore  he  thought  that  the  appeal  ought  to  be  allowed. 


LONDON  AND  EDINBURGH  SHIPPING  CO.  v.  BROWN. 

Court  of  Session,  Scotland,  1905.    7  Sess.  Cases  (5th  Series)  488. 

A  steamship  was  moored  to  a  quay  in  a  dock  discharging  her 
cargo  under  a  stevedore,  who  had  contracted  with  her  owners  to 
unload  her.  The  laborers  in  the  employment  of  the  stevedore  were 
each  appointed  to  work  in  connection  with  a  particular  hold  of  the 
vessel,  either  on  board  her  or  on  the  quay.  Peter  Brown,  who  was 
employed  on  the  quay  to  discharge  cargo  from  the  afterhold,  and 
who  did  not  require  in  the  performance  of  his  duty  to  go  on  board 
the  vessel,  on  being  informed  that  one  of  his  fellow-workmen  em- 
ployed in  the  forehold  was  lying  there  in  an  unconscious  condition 


1914),  and  see  cases  cited  in  notes  to  Plumb  v.  Cobdcn  Flour  Mills  Co.,  post, 
p.  54.  and  25  Harv.  L.  R.  413-416. 

So  a  servant  who,  contrary  to  the  express  orders  of  his  employer,  takes 
the  place  and  does  the  work  of  another,  can  not  recover  compensation  for 
injuries  received  while  so  engaged,  IVhelan  v.  Moore,  43  Ir.  L.  T.  205  (C.  A. 
Ir.  1909),  2  B.  W.  C.  C.  114,  alitcr,  where,  to  the  knowledge  of  the  master  or 
his  representative,  it  is  the  custom  for  such  workmen  to  interchange  and  no 
objection  has  been  made,  Canibrook  v.  George,  5  W.  C.  C.  26,  114  L.  T.  J. 
550,  and  this  though  the  workmen  interchanging  duties  were  employed  by 
different  masters,  Hennabcrry  v.  Doyle,  46  Ir.  L.  T.  70  (C.  A.  Jr.,  1911), 
5  B.  W.  C.  C.  580.  As  to  the  right  of  an  inferior  workman  to  go  outside  his 
appointed  sphere,  at  the  command  of  a  superior,  even  in  violation  of  general 
orders  or  prohibition,  see  Broivn  v.  Scoit,  1  W.  C.  C.  11  (C.  A.  Eng..  1899)  : 
Geary  v.  Ginzler  &  Co.,  6  B.  W.  C.  C.  72  (C.  A.  Eng..  1913),  and  the  very 
suggestive  opinion  of  Parrv.  J.,  in  Stafham  v.  Gallmvaxs.  Ltd.,  109  L.  T.  J. 
133   (Manchester  County  Court.  1900).  2  W.  C.  C.  149. 

■*  As  to  the  effect  of  such  a  custom  to  di<;regard  general  rules,  etc..  com- 
pare Richardson  v.  Denton  Colliery  Co..  6  B.  W.  C.  C.  629  (C.  A.  Eng..  1913), 
with  Barnes  v.  Collierv  Co.,  post.  p.  59.  and  see  McKec  v.  Great  Northern  R. 
Co..  42  Ir.  L.  T.  132  (C.  A.  Ir..  1908).  1  B.  W.  C  C.  165. 


LONDON   &C.   CO.  Z'.   I'.ROWN,  '37 

owing  to  inhaling  noxious  gas,  ottered  to  attempt  a  rescue,  and  after 
a  handkerchief  had  been  tied  around  his  mouth,  was  lowered  into 
the  forehold,  where  both  he  and  the  man  he  had  attempted  to  rescue 
were  suffocated  by  carbonic  acid  gas.  Brown  acted  without  instruc- 
tions from  his  employer — the  stevedore — who  had  gone  for  rescue 
appliances.  Brown's  mother  brought  a  claim  for  compensation  un- 
der the  Workmen's  Compensation  Act,  1897,  against  the  steamship 
owners  as  the  undertakers  in  the  sense  of  the  Act. 

The  Sheriff-Substitute  found  that  the  accident  arose  out  of  and 
in  the  course  of  the  said  Peter  Brown's  employment. 

Lord  Justice-Clerk.  It  appears  to  me  that  there  can  be  no 
doubt  that  the  deceased  workman  was,  at  the  time  when  working 
immediately  before  the  accident,  employed  on,  in,  or  about  a  factory, 
the  work  which  was  being  done  having  been  the  unloading  of  a  ship 
and  the  placing  of  her  cargo  upon  the  quay  alongside.  Therefore 
the  only  real  question  in  the  case  is  whether  it  can  be  held  he  was 
in  the  course  of  his  employment  at  the  time  when  the  accident  to 
him  occurred  which  caused  his  death.  The  circumstances  are,  that 
while  at  the  side  of  the  vessel  he  was  suddenly  informed  that  a 
fellow-workman  was  unconscious  in  the  forehold,  that  he  at  once 
tied  a  handkerchief  over  his  mouth,  and  got  himself  lowered  to  try 
to  rescue  the  other  man,  and  was  himself  suffocated. 

Is  he  to  be  held,  in  these  circumstances,  to  have  acted  in  his 
employment?  I  think  it  must  be  fairly  held  that  that  question  may 
be  answered  as  it  was  answered  in  the  Court  below.  I  can  not 
doubt  that,  in  a  sudden  emergency  where  there  is  danger,  a  work- 
man does  not  go  out  of  his  employment  if  he  endeavors  to  prevent 
the  danger  from  taking  effect.  For  example,  if,  in  a  yard  where  a 
man  is  working,  a  hors^  suddenly  runs  off,  and  there  is  danger  to 
others,  I  would  hold  that,  if  the  man  did  his  best  to  stop  the  horse, 
and  met  with  an  injury,  he  suffered  that  injury  in  the  course  of  his 
employment.  It  would  be  a  right  thing  to  do,  in  the  interest  of  the 
safety  of  those  in  the  yard,  and,  therefore,  in  the  interest  of  his 
master.  The  same  would  apply  to  the  endeavor  to  sprag  a  runaway 
wagon,  which  might  cause  loss  of  life.  No  doubt  this  case  is  some- 
what tmusual,  and  the  endeavor  was  made  to  liken  it  to  the  case  of 
persons  arriving  on  the  scene  of  a  disaster,  such  as  a  coal  pit  explo- 
sion, and  deliberately  volunteering  to  join  a  rescue  party,  and  who, 
therefore,  could  be  held  not  to  be  acting  as  employes,  but  solely  as 
individuals.  I  can  conceive  such  a  case,  where  it  would  be  very 
difficult  to  make  the  Act  apply ;  but,  in  my  view,  any  such  case  is 
distinguishable  from  the  present  one.  Here  the  deceased  was  at  the 
work  that  was  going  on.  Had  one  of  the  men  who  was  with  him, 
engaged  in  work  on  the  quay,  come  suddenly  into  danger,  and  he 
had  instantly  endeavored  to  save  him,  I  could  have  no  hesitation  in 
saying  that  his  doing  so  was  an  act  in  the  course  of  his  employment. 
I  do  not  feel  that  his  case  falls  into  a  different  category  because  the 
man  he  tried  to  save  was  engaged  at  a  different  department  of  the 
same  work  in  the  factory.  My  opinion  is  that  there  is  no  stifficicnt 
ground  disclosed  in  the  statement  of  facts  to  require  that  we  should 


38 


APPENDIX. 


hold  that  the  Sheriff  pronounced  a  wrong  decision  in  law  in  finding 
liability  under  the  Act,  and  that  the  questions  in  the  case  should  be 
answered  in  the  affirmative. 

Lord  Young.    I  concur. 

Lord  Kyllachy.  (Dissenting  on  the  ground  that  the  deceased 
did  not  lose  his  life  by  what  can  properly  be  called  an  accident.)  I 
confess  I  have  some  doubt  whether  it  can  be  said  to  have  arisen  out 
of  his  employment — I  mean  out  of  his  employment  at  the  particular 
time  and  place.  I  rather  think  that  upon  the  facts  stated  it  is  difficult 
to  affirm  that  what  happened  would  not  equally  have  happened  al- 
though, the  deceased  being  at  the  time  where  he  was,  had  been  there 
in  some  other  employment,  or  in  no  employment  at  all.^ 


''Accord:  Mathews  v.  Bedworth,  106  L.  T.  J.  485  (Nuneaton  Co.  Ct., 
1899),  1  W.  C.  C.  124,  and  Yates  v.  South  Kirby  &c  Colliery  Co.,  L.  R.  1910, 
2  K.  B.  538,  3  B.  W.  C.  C.  418,  a  collier,  while  assisting  in  the  removal  of  a 
shockingly  injured  fellow  collier,  received  a  nervous  shock  so  severe  as  to 
cause  neurasthenia. 

So  a  servant  may  do  acts  entirely  different  from  the  work  assigned  him, 
even  such  as  he  is  forbidden  to  do  under  normal  conditions,  if  they  are  nec- 
essary to  preserve  his  master's  property  from  destruction,  Rees  V.  Thomas, 
L.  R.  1899,  1  Q.  B.  1015,  1  W.  C.  C.  9,  a  mine  boy  held  to  be  within  the  course 
of  his  employment  while  attempting  to  stop  a  runaway  horse,  though  his 
employment  had  nothing  to  do  with  horses  and  he  had  got  on  the  truck 
which  the  runaway  horse  was  drawing  contrary  to  orders  and  to  steal  a  ride, 
(see  also,  Hapeiman  v.  Poole,  25  T.  L.  R.  155,  2  B.  W.  C.  C.  48,  dependents 
of  an  employe  of  a  lion-tamer,  whose  duty  did  not  require  him  to  come  in 
contact  with  the  lions,  held  entitled  to  compensation  for  his  death  while  at- 
tempting to  drive  escaped  lions  back  to  their  cage)  or  even  if  he  honestly 
but  mistakenly  believes  that  they  are  so  necessary,  though  his  master's  prop- 
erty is  not  in  fact  in  any  peril,  Harrison  v.  Whitakcr  Bros.,  16  T.  L.  R.  108, 
2  W.  C.  C.  12  (C.  A.,  1900).  a  boy  employed  to  grease  the  wheels  of  trucks 
used  upon  his  employer's  private  railway,  while  waiting  for  tracks  to  grease, 
went  to  w^arm  himself  at  a  fire  near  to  the  lever  of  a  switch.  He  saw  a  train 
approaching  and,  thinking  the  switch  closed,  pulled  the  lever  to  open  it,  and 
in  so  doing  was  injured.  In  fact  the  switch  operated  automatically  and  the 
engine' would  have  opened  it.  It  was  held  that  the  boy's  story  being  be- 
lieved, there  was  sufficient  evidence  to  justify  the  County  Court  in  holdmg 
that  the  injury  arose  out  of  and  in  the  course  of  the  boy's  employment.  If, 
however,  the  servant  or  other  person  imperilled  be  not  entitled  to  compensa- 
tion if  injured,  the  rescue  has  no  tendency  to  protect  the  master's  interest. 
and  the  servant's  injury,  received  in  attempting  it.  does  not  arise  m  the 
course  of  the  employment,  Mullen  v.  Stezvart,  (1908)  Scot.  Sess.  Cas.  91, 
1  B.  W.  C.  C.  204,  and  see  In  re  Armstcad,  opinions  of  the  Solicitor  of  the 
Department  of  Commerce  and  Labor  240,  foreman  injured  in  attempting  to 
save  the  life  of  a  workman  imperiled  in  a  fight,  and  In  re  Verkamp,  Bulletin 
of  the  Ind.  Com.  of  Ohio,  Vol.  1,  No.  7,  p.  123  (1914),  messenger  injured 
while  giving  assistance  to  a  horse,  not  owned  by  his  employer,  which  had  been 
overcome  bv  the  heat.  In  Powell  v.  Lanarkshire  Steel  Co.,  6  Fraser  103  (Scot. 
Ct.  Sess.,  1904),  it  was  held  that  a  servant  injured  while  endeavoring  to  save 
property  which  had  been  imperilled  by  his  own  acts  done  outside  his  sphere  of 
employment  and  in  disobedience  of  orders,  was  not  entitled  to  compensa- 
tion. But  see  Hapdman  v.  Poole,  25  T.  L.  R.  155.  2  B.  W.  C.  C.  48.  So  a 
servant,  doing  another  servant's  work  to  oblige  him,  is  not  within  the  course 
of  his  emplovment,  Mc Allan  v.  Perthshire  County  Council,  8  Fraser  783  (Scot. 
Ct.  Sess.,  1906). 


HARDING  V.   BRVNODU   COLLIERY  CO.  39 

HARDING  V.  THE  BRYNDDU  COLLIERY  COMPANY  LTD. 

Court  of  Appeal,  England,  1911.    L.  R.  1911,  2  A'.  B.  Div.  IM. 

Appeal  against  the  award  of  the  judge  of  the  Bridgend  County 
Court  upon  a  claim  for  compensation  under  the  Workmen's  Com- 
pensation Act,  1906. 

The  question  raised  by  this  appeal  was  whether  the  wilful  dis- 
obedience of  an  order  not  to  enter  a  dangerous  working  so  far  took 
that  place  out  of  the  sphere  of  the  workmen's  employment  that  the 
accident  could  be  held  not  to  have  arisen  "out  of"  the  employment. 

The  deceased  man  Harding  was  employed  as  a  collier  by  the 
defendant  collier  company. 

In  November  last,  Harding  was  employed  with  others  hewing 
coal  on  a  somewhat  steep  slope  which  was  worked  upwards ;  a  good 
deal  of  gas  had  collected  in  this  working  (which  was  called  the  "top 
hole")  ;  in  order  to  get  rid  of  this  gas  and  thus  enable  the  coal  to  be 
safely  worked,  Harding  and  another  man  named  Henson  were 
taken  away  from  their  ordinary  work  and  employed  at  so  much  an 
hour  to  work  in  a  "bogey" — a  passage  cut  through  the  seam  above 
the  "top  hole" — in  order  to  drill  a  hole  from  above  into  the  "top 
hole"  to  let  out  the  accumulation  of  gas. 

The  entrance  to  the  "top  hole"  from  below  had  been  blocked 
with  cross  boards,  to  show  that  it  was  unsafe  for  any  one  to  enter, 
in  accordance  with  the  Colliery  Special  Rules  made  pursuant  to  the 
Coal  Mines  Regulation  Act,  1887,  by  which  all  colliers  and  others 
were  expressly  forbidden  to  enter  any  v^orking  so  blocked  without 
leave  or  order  of  the  fireman  or  other  superior  officer.  Harding 
and  his  mate  after  som^  days'  labour  had  w^orked  the  drill  about 
five  feet  into  the  ground  twice,  without  getting  into  the  "top  hole," 
and  he  thereupon  asked  a  foreman  or  overlooker  if  he  might  go  into 
the  "top  hole,"  to  ascertain  from  the  blows  on  the  drill  above,  and 
by  tapping  on  the  roof  from  below,  whether  the  drill  was  being 
driven  in  the  right  direction.  The  fireman  told  Harding  he  was  not 
to  go  as  the  "top  hole"  was  unsafe. 

Notwithstanding  this  order,  Harding  went  round  and  entered 
the  "top  hole"  from  below ;  he  was  heard  by  his  mate  above  tapping 
the  roof  with  a  mandril  handle,  and  then  all  sounds  ceased ;  on  his 
mate  going  round,  Harding  was  discovered  some  six  feet  up  th^. 
working  suffocated  by  the  gas. 

On  a  claim  for  compensation  by  Harding's  dependents,  the 
County  Court  Judge  made  an  award  in  their  favour  for  £300.  bein,' 
of  opinion  that  though  Harding  had  been  guilty  of  serious  and  wil- 
ful misconduct  in  going  into  the  "top  hole"  his  dependents  were 
nevertheless  entitled  to  an  award  under  the  Compensation  .'\ct. 

The  employers  appealed. 

Cozens-Hardy,  M.  R.  This  appeal  raises  a  (hfficult  question. 
The  applicants  are  the  dependents  of  a  deceased  collier  and  the 
question  is  whether  a  fatal  accident  arose  "out  of  and  in  the  course 


40  APPENDIX. 

of"  his  employment.  The  material  facts  may  be  shortly  stated. 
(Having  stated  the  facts  and  the  tinding  of  the  comity  court  judge, 
his  Lordship  continued.)  I  desire  to  repeat  what  1  said  in  the  re- 
cent case  of  Weighill  v.  South  Hetton  Coal  Co.,  Ltd.,^  757:  Serious 
and  wilful  misconduct  within  the  sphere  of  the  employment  does  not 
prevent  his  dependents  from  claiming  compensation,  but  wilful  mis- 
conduct outside  the  sphere  of  his  employment  does  not  bring  the 
accident  wathin  the  sphere  of  the  employment.  The  real  difficulty 
in  this  case  is,  was  the  sphere  of  employment  so  limited  as  defined 
as  to  exclude  the  "top  hole,"  or  was  this  man's  entrance  into  the 
"top  hole"  merely  an  act  honestly  done  in  furtherance  of  the  object 
which  he  w^as  instructed  to  effect,  namely,  to  tap  the  gas  by  means 
of  a  drill  hole?  In  my  opinion  the  latter  is  the  true  view.  This 
case  in  no  way  resembles  the  case,  Weighill  v.  South  Hetton  Coal 
Ltd.,  supra,  which  was  recently  before  us,  where  a  collier  who  was 
employed  to  hew  coal  in  a  particular  part  of  the  mine  deliberately 
and  for  his  own  advantage  went  to  a  different  part  of  the  mine  where 
the  coal  was  softer.  In  that  case  w^e  held  that  by  so  doing  he  had 
departed  from  the  course  of  his  employment.  So  in  the  present  case 
if  Harding  had  entered  the  "top  hole"  with  the  object  of  working 
coal  there,  and  not  w^ith  the  view  of  assisting  the  drilling  operation, 
I  think  the  employers  w^ould  not  be  liable.  In  my  opinion  he  was 
engaged  in  the  drilling  operation,  although  he  was  guilty  of  serious 
and  wilful  misconduct  in  entering  the  "top  hole." 

I  have  had  the  opportunity  of  considering  the  very  recent  case 
of  Conway  v.  Pumpherston  Oil  Co.,  Ltd.,^  a  case  which  is  really 
indistinguishable  from  the  present  case,  and  I  have  the  satisfaction 
of  finding  that  the  view  wdiich  I  have  taken  is  supported  by  the  high 
authority  of  the  judges  of  the  First  Division.  In  my  opinion  the 
appeal  fails  and  must  be  dismissed  with  costs. 

Buckley,  L.  J.  It  is  a  matter  of  regret,  but  scarcely  of  sur- 
prise, that  in  such  a  case  as  this  opinions  should  differ.  I  am  of  a 
different  opinion  from  the  IMaster  of  the  Rolls. 

From  the  judgment  of  the  learned  county  court  judge  I  read 
this  passage :  "The  act  though  it  was  a  disobedience  of  the  rule  and 
serious  and  wilful  misconduct  was  honestly  done  for  the  sole  pur- 
pose of  expediting  his  work  of  getting  coal  which  was  the  main  pur- 
pose of  his  employment  and  was  therefore  within  the  scope  01 
sphere  of  his  employment."  In  that,  to  my  mind,  lies  the  error  of 
this  judgment.  The  purpose  of  this  man's  employment  at  the  time 
of  the  injury  was  to  drill  a  certain  hole.     The  "scope  or  sphere  of 

^  Cited  in  a  note  to  the  principal  case,  L.  R.  1911,  2  K.  B.  747,  4  _B.  W.  C 
C.  269,  wherein  compensation  was  denied  the  dependents  of  a  miner  who 
being  paid  by  the  amount  of  coal  mined,  instead  of  working  at  the  "face" 
directed  by  his  employer,  worked  at  another  place  where  the  coal  was  softer 
and  more  easily  mined,  though  much  more  dangerous  and  expressly  for- 
bidden, accord:  Parker  v.  Hambrook,  5  B.  \N.  C.  C.  608  (C.  A.  Eng.,  1912). 
workman  in  quarry  killed  under  very  similar  circumstances. 

M911,  Sess.  Cases  660  (Sc.  Ct.  of  Sess.),  48  Sc.  L.  R.  632.  4  B.  W.  C.  C. 
392.  compensation  allowed  to  dependents  of  a  miner  killed  while  fetching  a 
pick  from  a  part  of  the  workings  which  he  had  been   forbidden  to  enter. 


HARDING  V.   BRVNDDU   COLLIERY   CO.  4I 

his  employment,"  if  I  am  to  use  the  learned  judge's  expression,  was 
not  to  do  that  act  in  any  place  whatsoever.  It  was  to  do  it  at  one 
place  to  the  exclusion  of  another  place.  To  explain  what  I  mean  I 
will  give  an  illustration.  Suppose  that  the  employer  is  a  quarry 
owner  and  employs  a  quarryman  to  quarry  stone  in  quarry  A.  The 
man  goes  to  quarry  B,  and  quarries  there  and  is  injured.  To  my 
mind  he  is  outside  the  Act  of  Parliament  altogether.  He  was  not 
employed  to  go  there  at  all.  He  had  no  business  there.  His  busi- 
ness was  to  go  to  A  and  quarry  in  A.  I  may  add  (though  the  reason 
to  my  mind  makes  no  difference)  that  it  may  be  that  the  owner 
knew  that  quarry  B  was  dangerous ;  that  stone  was  liable  to  fall 
there ;  and  that  he  had  expressly  closed  it  because  it  was  dangerous. 
When  the  man  went  to  B  he  could  not  say  he  went  there  in  the 
course  of  his  employment  at  all. 

To  take  another  illustration,  suppose  a  man  is  a  collier  and  is 
employed  to  hew  coal  in  the  top  seam  ;  and  that  there  is  a  lower  seam 
and  he  is  told  not  to  go  there.  I  will  suppose  again  (though  it  adds 
nothing  to  my  mind  to  it)  that  the  ventilation  of  the  lower  seam  is 
imperfect,  and  that  there  is  gas  there  which  makes  it  dangerous. 
Whether  with  reason  or  without  reason  his  employment  is  to  hew 
in  the  top  seam  and  not  in  the  lower  seam.  Under  those  circum- 
stances if  he  goes  to  the  lower  seam  and  hews  coal  there,  to  my 
mind  he  is  outside  the  sphere  of  his  employment  altogether,  and  if 
he  sustains  injury  he  is  not  wnthin  the  Act  of  Parliament. 

It  seems  to  me  that  the  Lord  President  in  the  Scotch  case  of 
Conway  v.  Pumpherston  Oil  Co.,  Ltd.,  laid  down  wnth  perfect  ac- 
curacy (if  I  may  say  so  respectfully)  two  ways  in  which  a  servant 
may  be  outside  the  sphere  or  scope  of  his.  employment.  The  one  is 
the  case  where  he  excee^ls  the  limits  imposed  by  the  nature  of  his 
work.  The  instance  given  by  the  Lord  President  is  that  where  the 
footman  takes  the  reins  and  drives  the  horses.  He  is  not  within  his 
employment  for  he  is  not  employed  for  that  purpose.  The  other  is 
where  a  man  goes  into  a  territory  with  which  he  has  nothing  to  do, 
of  which  I  have  given  the  instance  where  the  man  employed  to  work 
in  quarry  A,  or  in  the  top  seam,  goes  into  quarry  P.,  or  the  lower 
seam.    He  is  not  then  in  the  course  of  his  employment  at  all.-' 

The  question  to  be  determined  here  is  whether  the  present  case 
is  one  of  that  description.  One  of  the  purposes  of  this  man's  em- 
ployment, in  fact  the  whole  purpose  at  the  moment,  was  to  drill  a 

'The  exact  language  of  the  Lord  President  (Duncdiii)  was:  "There 
are  two  wa5'S  in  which  a  servant  may  he  without  the  sphere  of  his  employ- 
ment. One  way— and  in  these  cases  the  question  is  Ronerally  of  easy  solu- 
tion— is  where  the  s^ervant  does  some  other  sort  of  work  tlian  that  for  which 
he  is  engaged.  To^ake  a  very  simple  and  ohvious  instance. — if  the  footman 
on  the  box  of  a  carriage,  without  the  consent  of  the  coachman,  took  it 
into  his  head  to  drive  his  horses,  there  would  he  no  question  that  if  any 
accident  happened  it  would  be  in  the  course  of  his  employment,  for  it  is  not 
part  of  a  footman's  business  to  drive,  although  itis  part  of  his  business  to 
sit  on  the  box.  The  other  class  of  cases  which  raise  more  difficult  questions 
is  where  a  servant  goes  into  what  I  think  I  may  call  a  territory  with  which 
he  has  nothing  to  do." 


42  APPENDIX. 

hole  from  the  bogey  to  the  top  hole.  Was  it  within  the  scope  or 
sphere  of  his  employment  to  do  that  act  from  any  point  whatsoever  ? 
That  is  a  question  of  fact  to  be  determined.  Was  he  in  like  case 
with  the  man  employed  to  hew  in  the  top  seam  and  not  in  the  lower 
seam,  or  to  quarry  in  A  and  not  in  B  ?  The  top  hole  is,  in  my  illus- 
tration, equivalent  to  the  lower  seam,  in  which  I  have  been  suppos- 
ing that  the  ventilation  was  imperfect,  and  the  place  dangerous. 
He  had  no  business  there  at  all.  It  was  not  merely  that  he  was  not 
to  go  to  a  place — that,  as  I  will  point  out  presently,  may  be  serious 
and  wilful  misconduct.  His  employment  was  to  drill  a  hole,  work- 
ing at  a  certain  place  to  the  exclusion  of  a  certain  other  place. 
Directly  he  went  to  the  latter  place  he  was  outside  the  course  of  his 
employment,  or  what  has  been  called  the  scope  or  sphere  of  his 
employment.  Those  words  "scope  or  sphere"  seems  to  me  not  mis- 
leading; they  are  useful  words :  you  have  to  see  whether  it  is  in  the 
course  of  the  employment,  and  if  the  employment  be  a  limited  em- 
ployment (as  it  always  is),  then  you  have  to  see  what  are  its  limits, 
and  its  limits  are  defined  by  seeing  what  is  its  sphere  or  its  scope. 

I  want  to  add  something  lest  this  judgment  should  be  misunder- 
stood. The  question  is  not  whether  the  man  in  the  course  of  his 
employment  went  to  a  forbidden  place.  If  that  be  it,  there  may  be 
simply  serious  and  wilful  misconduct,  and  he  may  be  entitled  to 
recover.  The  question  is :  Has  the  man  done  an  act  outside  the 
sphere  of  his  employment,  or  has  he  in  doing  an  act  within  the 
sphere  of  his  employment  been  guilty  of  serious  and  wilful  miscon- 
duct? If  it  be  the  former  he  is  not  entitled  to  recover;  if  it  be  the 
latter  he  is. 

Let  me  give  an  illustration  as  to  place.  Suppose  a  man  is  em- 
ployed in  a  factory  and  his  duty  is  to  go  to  and  fro  m  the  factory  to 
carry  goods,  and  he  is  told  that  he  must  always  go  by  this  passage 
and  return  by  that  passage.  I  am  supposing  a  rule  or  regulation 
simply  for  the  purpose  of  freedom  of  circulation  in  the  factory.  If 
he  goes  by  the  passage  by  which  he  ought  to  return,  he  will  have 
broken  a  rule  as  to  place,  but  he  will  not  be  out  of  the  course  of  his 
employment ;  he  will  be  there  for  the  purpose  of  his  employment 
doing  an  act  within  the  sphere  of  his  employment,  carrying  goods 
or  whatever  it  may  be,  but  doing  it  in  a  forbidden  way. 

As  regards  the  case  of  Conzvay  v.  Pumphcrston  Oil  Co.,  Ltd.,  it  is, 
I  agree,  exceedingly  pertinent  to  this  case,  and  I  may  say  my  mind 
goes  with  the  Lord  President  entirely  in  the  illustration  that  he  gives 
of  the  way  in  which  the  case  is  to  be  treated ;  but  what  I  have  looked 
for,  and  looked  for  in  vain,  is  to  see  by  what  course  of  reasoning 
the  Lord  President  arrived  at  his  conclusion  when  he  said  "The 
mere  fact  he  went  into  the  upset  does  not  take  him  outside  the 
sphere  of  his  employment."  I  can  not  find  any  reasoning  leading  to 
ihnt.  If  there  was  reasoning  which  led  to  the  conclusion  that  it 
was  within  the  sphere  of  his  employment,  although  he  went  there 
by  way  of  misconduct,  or  that  it  was  not  so,  I  need  not  say  I  would 
have  considered  that  and  given  effect  to  it  to  the  best  of  my  ability, 
but  while  I  follow  the  Lord  President  as  to  the  indication  which  he 


HARDING  V.    RRVNDDU   COLLIERY   CO.  43 

gave  of  the  lines  which  ought  to  guide  him,  I  fail  to  find  any  reason- 
ing which  led  him  to  the  conclusion,  and  therefore  I  am  unable  to 
assist  myself  by  following  that  reasoning  in  dealing  with  the  present 
case. 

I  only  want  to  add  out  of  respect  to  the  Master  of  the  Rolls, 
who  has  expressed  a  different  opinion,  that  Weighill  v.  South  Hel- 
ton Coal  Co.,  seems  to  me  to  be  the  same  as  this  case.  It  can  not  con- 
stitute any  difference  that  it  was  to  the  pecuniary  advantage  of  the 
man,  to  go  to  the  forbidden  place.  The  whole  question  is  whether 
it  was  forbidden  in  the  sense  that  it  was  misconduct  to  go  there,  or 
whether  he  was  out  of  his  employment  when  he  went  there.  In 
the  case  of  Weighill  v.  South  Hetton  Coal  Co.,  the  facts  were  that 
the  collier  was  sent  to  work  in  one  place  and  he  went  and  worked  in 
another  place.  As  it  happened,  the  latter  place  was  a  dangerous 
place,  and  what  we  held  was  that  when  he  went  there  he  was  out  of 
the  scope  of  his  employment  altogether.  To  my  mind  it  makes  no 
difference  that  the  motive  that  led  him  to  go  there  was  a  motive 
which  was  for  his  pecuniary  advantage.  The  whole  question  is 
whether  he  ought  to  have  gone  there  or  not ;  directly  we  found  he 
should  not  have  gone  there,  then  to  my  mind  the  limits  of  his  em- 
ployment were  exceeded  and  he  was  not  within  the  Act  at  all.  For 
these  reasons  it  seems  to  me  the  judgment  of  the  county  court  judge 
was  wrong.  I  have  indicated  where  it  appears  to  me  that  it  goes 
wrong.    I  think  this  appeal  ought  to  be  allowed. 

Kennedy,  L.  J.  I  think  that  the  learned  county  court  judge 
was  justified  in  coming  to  the  decision  which  is  under  appeal.  (After 
stating  the  facts,  his  Lordship  continued.)  That  which  the  deceased 
did  in  breach  of  the  directions  previously  given  by  his  superiors 
and  the  regulations  of  the  mine  constituted,  I  agree  with  the  learned 
county  court  judge,  serious  and  wilful  misconduct.  lUit  this  fact 
will  not  of  itself  operate  to  deprive  his  dependents  of  the  right  to 
compensation  under  the  Act.  That  right  depends  upon  proof  tiiat 
the  death  of  the  deceased  was  due  to  an  accident  in  the  course  of 
and  arising  out  of  his  employment. 

Now  his  employment  was,  in  my  view,  to  drill  the  air  passage 
through  the  coal  from  the  bogey  into  the  top  hole;  and,  un(|ucslion- 
ably,  this  breach  of  duty  and  of  orders  was  committed  by  him  in 
order  successively  to  carry  out  and  whilst  he  was  engaged  in  carry- 
ing out  the  purpose  of  this  employment.  It  appears  to  me  in  these 
circumstances  that  the  fatal  accident  was  none  the  less  an  accident 
in  the  course  of  and  arising  out  of  his  employment,  because  he  did 
not  confine  his  operations  to  the  area  of  the  bogey  as  he  ought  to 
have  done.  I  see  in  such  a  case  no  sound  distinction  of  principle 
between  breakirrg  instructions  as  to  place  and  breaking  instructions 
as  to  the  use  of  machinery,  or  any  other  limitation  imposed  by  the 
employer. 

Take  the  case  of  a  workman  ordered  to  clean  a  high  window, 
and  at  the  same  time  to  do  that  work  only  from  the  inside  of  a  room 
and  not  to  step  outside ;  or,  still  nearer  to  the  present  case,  the  case 
of  a  workman  ordered  to  break  through  the  ceiling  between  two 


44  APPENDIX. 

floors  of  a  house,  and  told  at  the  same  time  to  work  only  from  the 
upper  floor;  it  is  no  doubt  wilful  misconduct,  and  might  in  some 
circumstances  be  serious  misconduct,  of  the  workman  in  each  of 
these  cases  to  do  the  work  without  also  complying,  in  the  manner 
of  doing  it,  with  the  instructions  he  has  received ;  but  none  the  less, 
as  it  appears  to  me,  if  he  disobeys,  solely  for  the  purpose  of  the 
work,  and  meets  with  a  fatal  accident,  his  death  may  be  held  to  be 
due  to  an  injury  in  the  course  of  and  arising  out  of  his  employment. 
Provided  that  he  meets  his  death  by  accident  in  the  performance 
of  the  particular  piece  of  work  which  it  is  his  duty  to  do,  I  do  not 
think  that  the  mere  fact  of  non-compliance  with  a  limitation  as  to 
area,  any  more  than  the  mere  fact  of  non-compliance  with  a  limita- 
tion as  to  method,  if  the  purpose  of  the  non-compliance  is  the  ef- 
fective furtherance  of  the  purpose  of  the  workman's  proper  task, 
ought  to  be  held  necessarily,  or  indeed  ordinarily,  to  put  his  death 
by  the  resulting  accident  outside  the  employment  so  as  to  exclude 
his  dependents  from  the  benefit  of  this  Act  of  Parliament.  It  is 
with  the  utmost  diffidence  that  I  venture  to  criticize  any  expression 
which  appears  in  a  judgment  of  Lord  Collins  as  in  IVhitehead  v. 
Reader,  (1901)  2  K.  B.  48;  but  "sphere  of  employment"  appears  to 
me  to  be  rather  a  dangerous  metaphorical  expression,  in  so  far  as  it 
tends  to  introduce  a  suggestion  of  special  importance,  in  regard  to 
section  i  of  the  Act,  of  the  workman's  obedience  to  an  order  as  to 
the  local  area  of  working. 

I  am  of  opinion  that  this  appeal  should  be  dismissed. 

Appeal  dismissed. 

(b)   "Arising  out  of  the  employment."^ 


ARMITAGE  v.  LANCASHIRE  AND  YORKSHIRE 
RAILWAY  CO. 

Court  of  Appeal,  England,  1902.    L.  R.  (1902),  2  K.  B.  Div.  178. 

Collins,  M.  R.  In  this  case  the  county  court  judge  has  held  that 
the  respondent  was  entitled  to  compensation  under  the  Workman's 
Compensation  Act,  1897.  But  the  question  arises  here  whether  an  ac- 
cident, happening  as  this  accident  undoubtedly  happened,  can  in  point 
of  law  be  said  to  be  an  accident  arising  out  of  and  in  the  course 


^  This  phrase  is  used  in  the  Workmen's  Compensation  Acts  of  Arizona, 
California,  Connecticut,  Illinois,  Iowa,  Kansas,  Louisiana,  Maryland,  Massa- 
chusetts, Michigan,  Minnesota,  Nebraska,  Nevada,  New  Hampshire,  New 
Jersey,  New  York,  Oregon  and  Rhode  Island.  In  Arizona,  whose  act  is  lim- 
ited to  certain  enumerated  "especially  dangerous"  employments,  the  injury 
must  also  "be  due  wholly  or  partly  to  a  necessary  risk  of  employment  or  to 
failure  of  employer,  or  any  of  his  employes,  to  exercise  care  or  comply  with 
any  law."  In  the  West  Virgina  Act  and  in  the  Kentucky  Act.  declared  un- 
constitutional on  December  11,  1914,  in  State  Journal  Co.  v.  Workmen's  Com- 
pensation Board,  170  S.  W.  437  (1914),  the  very  similar  phrase  "resulting 
from"  the  employment  is  used.    While  in  Ohio,  Texas  or  Washington,  neither 


ARMITAGE  V.   LAXCASIIIKIi  &   VOKKSUIUE   RV.   CO.  45 

of  the  employment  within  the  meaning  of  the   Workmen's   Com- 
pensation Act,  1897.     I  do  not  think  that  it  can.     The  accident  in 
this  case,  no  doubt,  happened  while  the  respondent  was  engaged  in 
his  employment,  through  the  act  of  some  one  who  was  engaged  in 
the  same  employment,  but  that  act  was  one  which  had  no  relation 
whatever  to  the  employment.    A  boy,  engaged  in  the  same  work  as 
the  respondent,  in  anger  threw  a  piece  of  iron  at  another  boy,  which 
missed  him,  and  hit  the  respondent.     This  was  a  wrongful  act  en- 
tirely outside  the  scope  of  the  employment.     The  statute  does  not 
provide  an  insurance  for  the  workman  against  every  accident  hap- 
pening to  him,  while  he  is  engaged  in  the  employment  of  his  master, 
but  only  against  accidents  arising  out  of  and  in  the  course  of  that 
employment.    The  argument  put  forward  by  the  appellants'  counsel 
may  not  furnish  an  exhaustive  test  as  to  what  is  or  is  not  an  acci- 
dent arising  out  of  and  in  the  course  of  the  employment ;  but  I  think 
it  is  at  any  rate  a  useful  guide  in  dealing  with  that  question  to  sec 
whether  the  act  which  caused  the  accident  was  or  was  not  entirely 
outside  the  scope  of  the  employment  of  the  person  w^ho  committed 
it.     We  have  to  consider  what  sort  of  accident  the  Legislature  con- 
templated, when  they  spoke  of  accidents  arising  out  of  and  in  the 
course  of  the  employment.     Did  they  intend  to  give  compensation 
to  the  workman  for  injuries  occasioned  to  him,  while  engaged  in 
his  employment,  by  an  accident  arising  from  any  act  which  might 
be  done  by  another  workman  engaged   in  the  same  employment, 
although  it  might  have  no  relation  whatever  to  that  employment  ?    I 
think  that  it  is  obvious  that  they  did  not  so  intend.     The  fact  that 
a  boy  in  the  same  employment  as  the  respondent,  having  a  grudge 
against  another  boy,  threw  something  at  Jiim,  which  missed  him  and 
hit  the  respondent,  can  riot  in  my  opinion  be  described  as  an  accident 
arising  out  of  the  employment ;  the  accident  did  not  arise  from  any- 
thing which  by  any  stretch  of  language  can  properly  be  said  to  be 
incidental  to  the  employment  of  either  of  the  boys.     It  was  as  en- 
tirely outside  the  scope  of  the  employment  of  the  one  to  do  the  act 
which  caused  the  injury,  as  it  was  outside  the  scope  of  the  employ- 
ment of  the  other  to  be  exposed  to  such  an  injury.    A  similar  point 
to  that  arising  in  this  case  was  discussed  in  Scotland  in  the  case  of 
Falconer  v.  London  and  Glasgozv  Engineering  and  Iron  Shipbuild- 
ing Co.,  3  F.  564. 

Cozens-Hardy,  L.  J.  I  agree.  I  think  that  the  contention  for 
the  respondent  really  involves  the  erasure  of  the  words  "out  of" 
from  the  section.  That  contention  in  elTect  was  that,  the  accident 
having  occurred  in  the  course  of  the  employment,  it  is  immaterial 

the  phrase  "arising  out  of  the  emploj-^ment"  nor  any  other  phrase  of  similar 
meaning  is  used.  In  Lindaucr  v.  Hocning,  150  N.  W.  996  (Wis.  1915).  tlic 
provisions  that  compensation  is  payable  "wliere  at  the  time  of  tlie  accident, 
the  employe  is  performing  service  growing  out  of  and  incidental  to  the  em- 
ployment" and  "where  the  injury  is  proximately  caused  by  accident"  are  held 
to  convey  a  meaning  identical  with  that  of  the  "English  Act,"  and  the  word 
"accident"  being  jield  to  mean  industrial  accident,  that  is,  one  due  to  a  risk 
peculiarly  incident  to  the  particular  employment  of  the  sufferer  and  not  com- 
mon to  all  mankind. 


46  APPENDIX. 

how  it  happened,  with  the  exception  possibly,  that  it  must  be  caused 
by  the  act  of  somebody  employed  on  the  premises,  and  not  that  of 
a  trespasser  from  outside.  I  can  not  assent  to  this  contention.  1 
think  that  some  meaning  must  be  given  to  the  words  "out  of"  in  the 
section.  They  appear  to  point  to  accidents  arising  from  such  causes 
as  the  negligence  of  fellow- workmen  in  the  course  of  the  employ- 
ment, or  some  natural  cause  incidental  to  the  character  of  a  business. 
An  accident  arising  out  of  the  dangerous  nature  of  a  business  car- 
ried on,-  and  not  involving  any  human  agency,  such,  for  instance,  as 
spontaneous  combustion  of  some  material,  might  be  said  to  arise 
out  of  the  employment.  But  I  do  not  think  that  an  accident  caused 
by  the  tortious  act  of  a  fellow-workman  having  no  relation  what- 
ever to  the  employment  can  be  said  to  arise  out  of  the  employment. 

Appeal  allowed.' 


STUART  McNICOL'S  CASE. 
Supreme  Judicial  Court  of  Massachusetts,  1913.    215  Mass.  497. 

RuGG,  C.  J.  This  is  a  proceeding  under  Statute  191 1,  chap.  731, 
as  amended  by  Statute  1912,  chap.  571,  known  as  the  Workmen's 
Compensation  Act,  by  dependent  relatives  for  compensation  for  the 
death  of  Stuart  McNicol. 

I.  The  first  question  is  whether  the  deceased  received  an  "in- 
jury arising  out  of  and  in  the  course  of  his  employment,"  within 
the  meaning  of  those  words  in  Part  II,  §  i,  of  the  act.    In  order  that 

*And  this  though  the  fellow  workman  acts  in  express  disobedience  of 
orders,  Scott  v.  Payne  Bros.  Inc.,  85  N.  J.  L.  446  (1914),  and  by  so  doing 
goes  outside  of  "the  sphere  of  his  or  her  employment"  and  is  doing  work  not 
entrusted  or  even  prohibited  to  such  fellow  workman,  Geary  v.  Gincler  &  Co., 
108  L.  T.  286  (C.  A.  Eng.,  1913),  6  B.  W.  C.  C.  72. 

^Accord:  Wilson  v.  Laing,  1909,  Sess.  Cases  1230  (So.  Ct.  Sess.),  2  B. 
W.  C.  C.  118,  housemaid  injured  by  a  ball  of  her  employer's  child  thrown  at 
her  in  play  by  the  latter's  nurse ;  Fitzgerald  v.  Clarke  &  Sons,  L.  R.  1908, 
2  K.  B.  796,  1  B.  W.  C.  C.  197 ;  Cole  v.  Evans,  etc.  Co.,  4  B.  W.  C.  C.  138 
(1911);  Wriglcy  v.  Nasmyth,  Wilson  &  Co.,  6  B.  W.  C.  C.  90  (C.  A.  Eng.. 
1913),  a  case  rather  doubtful  on  its  facts;  but  see.  In  re  Mack,  Bulletin 
Ind.  Com.  of  Ohio,  Vol.  1,  No.  21,  p.  120  (1914).  So  where  a  fellow  em- 
ploye's life  or  the  master's  property  is  imperilled  by  larking,  injuries  sus- 
tained by  a  workman  while  going  outside  his  usual  sphere  of  employment  to 
preserve  either,  do  not  "arise  out  of  and  in  the  course  of  his  employment", 
see  Midler  v.  Stewart,  and  Lanarkshire  Steel  Co.  v.  Powell,  notes  to  Lon- 
don etc.  Co.  V.  Brown,  ante,  p.  36. 

Where  the  fellow-servant's  act  is  designed  to  further  the  work  entrusted 
to  him  and  is  appropriate  thereto,  the  fact  that  it  is  excessive  and  that  there 
is  bad  blood  between  him  and  the  sufiferer  does  not  defeat  recovery,  Mc- 
Intvre  v.  Rodgcrs,  6  Eraser  176  (Sc.  Ct.  Sess.  1904),  compare  Baird  &  Co. 
V.  Burley,  1908  Sess.  Cases  545  (Sc.  Ct.  Sess.),  1  B.  W.  C.  C.  7,  where  the 
plaintiff  who  was  trying  forcibly  to  get  an  appliance  needed  for  his  work 
back  from  fellow  workers  who  had  carried  it  off  in  joke,  was  injured  by  a 
handful  of  rubbish  thrown  by  the  latter  more  or  less  in  playful  retaliation. 
So  where  a  workman  is  engaged  in  his  ordinary  duties  and  injured  whilere- 
moving  a  tin  can  as  a  joke  placed  on  his  machine  is  entitled  to  compensation, 
Knopp  V.  American  Car  &  F.  Co.,  186  111.  App.  605  (1914). 


MC  NICOL  S  CASE.  47 

compensation  may  be  due  the  injury  must  both  arise  out  of  and  also 
be  received  in  the  course  of  the  employment.  Neither  alone  is 
enough. 

It  is  not  easy  nor  necessary  to  the  determination  of  the  case  at 
bar  to  give  a  comprehensive  definition  of  these  words  which  shall 
accurately  include  all  cases  embraced  within  the  act  and  with  pre- 
cision exclude  those  outside  its  terms.  It  is  suf^cient  to  say  that  an 
injury  is  received  "in  the  course  of"  the  employment  when  it  comes 
while  the  workman  is  doing  the  duty  which  he  is  employed  to  per- 
form. It  "arises  out  of"  the  employment,  when  there  is  apparent 
to  the  rational  mind,  upon  consideration  of  all  the  circumstances,  a 
causal  connection  between  the  conditions  under  which  the  work  is 
required  to  be  performed  and  the  resulting  injury.  Under  this  test, 
if  the  injury  can  be  seen  to  have  followed  as  a  natural  incident  of 
the  work  and  to  have  been  contemplated  by  a  reasonable  person 
familiar  with  the  whole  situation  as  a  result  of  the  exposure  occa- 
sioned by  the  nature  of  the  employment,  then  it  arises  "out  of"  the 
employment.  But  it  excludes  an  injury  which  can  not  fairly  be 
traced  to  the  employment  as  a  contributing  proximate  cause  and 
which  comes  from  a  hazard  to  which  the  workmen  would  have  been 
equally  exposed  apart  from  the  employment.  The  causative  danger 
must  be  peculiar  to  the  work  and  not  common  to  the  neighborhood. 
It  must  be  incidental  to  the  character  of  the  business  and  not  inde- 
pendent of  the  relation  of  master  and  servant.  It  need  not  have 
been  foreseen  or  expected,  but  after  the  event  it  must  appear  to 
have  had  its  origin  in  a  risk  connected  with  the  employment,  and  to 
have  flowed  from  that  source  as  a  rational  consequence.^ 


^Accord:  We  ekes  v.  Ws  Stead  &  Co.,  30  T.  L.  R.  586  (C.  A.  Eng.  1914), 
dependents  of  a  foreman,  who  had  to  decide  between  rival  appHcants  for  em- 
ployment as  van  drivers,  a  notoriously  rough  class,  and  was  killed  by  an  as- 
sault made  on  him  by  an  appHcant  to  whom  he  had  refused  employment,  held 
entitled  to  compensation,  alifcr,  had  he  been  similarly  assaulted  liy  a  cus- 
tomer. So  in  Rcsdale  v.  S.  S.  Kilmarnock,  59  Sol.  Journ.  &  W.  R.  145  (C.  .\. 
Eng.  1915),  the  risk  of  being  blown  up  by  an  enemies'  mine  was  held  to  be 
incidental  to  the  employment  of  a  trawler  in  the  North  Sea  during  the 
war  between  England  and  Germany,  and  see  Thorn  v.  Htiinm  &  Co.,  44 
County  Ct.  Chronicle  535  (1914),  taxicab  driver  taking  officers  to  a  fort 
shot  by  sentry  whose  challenge  he  had  not  heard  or  had  disregarded.  See 
also,  the  dictum  in  Mtirphv  v.  Bcrzvick,  43  Ir.  L.  T.  126  (C.  A.  Ir.  1909), 
2  B.  W.  C.  C.  103,  to  the  effect  that  while  the  risk  of  injury  while  fleeing 
from  the  advances  of  a  drunken  guest  who  had  invaded  tlie  kitchen,  was  not 
incidental  to  the  employment  of  a  cook  in  a  hotel,  it  might  be  incidental  to 
the  employment  of  a  bar-maid.  The  risk  of  attack  by  a  drunken  outsider, 
annoyed  by  the  employe  in  the  performance  of  his  duties,  is  not  incidental 
to  the  employment,  unless  it  necessarily  brings  him  into  contact  with  a  no- 
toriously rough  or 'Quarrelsome  class  of  intruders.  Mitchinson  v.  Dax  Broth- 
ers, L.  R.  1913,  1  K.  B.  Div.  603,  6  B.  W.  C.  C.  190.  Nor  are  risks  of  injury 
while  protecting  the  master's  person  from  assault  incidental  to  the  work  of 
a  foreman  of  sewage  works.  Collins  v.  Collins,  (1907)  2  Ir.  R.  104.  Even  a 
murderous  attack  by  the  employer  himself  upon  his  errand  boy  was  held  not 
incidental  to  the  latter's  employment,  Blakc  v.  Head,  106  L.  T.  822  (C.  .\. 
Eng.  1912),  5  B.  W.  C.  C.  303." 

Compare  Rowland  v.  Wright,  L.  R.  1909.  1  K.  B.  Div.  963.  1  B.  W.  C.  C. 
192,   where  a  stableman   bitten   by  a   stable   cat   was   given   compensation — 


48  APPENDIX. 

The  exact  words  to  be  interpreted  are  found  in  the  English 
workmen's  compensation  act,  and  doubtless  came  thence  into  our 
act.  Therefore  decisions  of  EngHsh  courts  before  the  adoption  of 
our  act  are  entitled  to  weight.  Ryalls  v.  Mechanics'  Mills,  150  Mass. 
190.  It  there  had  been  held  that  injuries  received  from  lightning 
on  a  high  and  unusually  exposed  scaffold,  Atidrew  v.  Failszvorth 
Industrial  Society,  { 1904)  2  K.  B.  32 ;  from  the  bite  of  a  cat  habitu- 
ally kept  in  the  place  of  employment,  Rozdand  v.  Wright,  (1909)  i 
K.  B.  963 ;  from  a  stone  thrown  by  a  boy  from  the  top  of  a  bridge 
at  a  locomotive  passing  underneath,  Challis  x.  London  &  Soutlnvest- 
crn  Railzvay,  (1905)  2  K.  B.  154;  and  from  an  attack  upon  a  cashier 
traveling  with  a  large  sum  of  money,  Nisbet  v.  Rayne  &  Burn, 
(1910)  2  K.  B.  689,  all  arose  in  the  course  and  out  of  the  employ- 
ment, while  the  contrary  had  been  held  as  to  injuries  resulting  from 
a  piece  of  iron  thrown  in  anger  by  a  boy  in  the  same  service,  Armi- 
tage  v.  Lancashire  &  Yorkshire  Railway,  (1902)  2  K.  B.  178;  from 
fright  at  the  incursion  of  an  insect  into  the  room,  Craske  v.  Wigan, 
( 1909)  2  K.  B.  635  ;  and  from  a  felonious  assault  of  the  employer, 
Blake  V.  Head,  106  L.  T.  Rep.  822. 

The  definition  formulated  above,  when  referred  to  the  facts 
of  these  cases,  reaches  results  in  accord  with  their  conclusions.  Ap- 
plying- it  to  the  facts  of  the  present  case,  it  seems  plain  that  the 
injury  of  the  deceased  arose  "out  of  and  in  the  course  of  his  em- 
ployment." The  findings  of  the  Industrial  Accident  Board  in  sub- 
stance are  that  Stuart  McNicol,  while  in  performance  of  his  duty  at 
the  Hoosac  Tunnel  Docks  as  a  checker  in  the  employ  of  a  firm  of 
importers,  was  injured  and  died  as  a  result  of  "blows  or  kicks  ad- 
ministered to  him  by  *  *  *  (Timothy)  McCarthy,"  who  was  in  "an 
intoxicated  frenzy  and  passion."  McCarthy  was  a  fellow  workman 
who  "was  in  the  habit  of  drinking  to  intoxication,  and  when  intoxi- 
cated was  quarrelsome  and  dangerous,  and  unsafe  to  be  permitted 
to  work  with  his  fellow  employes,  all  of  which  was  known  to  the 
superintendent  Alatthews,"  who  knowingly  permitted  him  in  such 
condition  to  continue  at  work  during  the  day  of  the  fatality, — which 
occurred  in  the  afternoon.  The  injury  came  while  the  deceased  was 
doing  the  work  for  which  he  was  hired.  It  was  due  to  the  act  of  an 
obviously  intoxicated  fellow  workman,  whose  quarrelsome  disposi- 
tion and  inebriate  condition  was  well  known  to  the  foreman  of  the 
employer.  A  natural  result  of  the  employment  of  a  peaceable  work- 
man in  company  with  a  choleric  drunkard  might  have  been  found  to 
be  an  attack  by  the  latter  upon  his  companion.  The  case  at  bar  is 
quite   distinguishable   from  a   stabbing   by  a   drunken   stranger,   a 


such  a  cat  being  said  to  be  "a  part  of  the  necessary  furniture  of  a  stable"— 
though  there  was  no  suggestion  that  the  employer  knew  that  the  cat  was 
vicious.  Had  the  cat  been  a  strange  cat  wandering  into  the  stable,  Cozens- 
Hardy.  M.  R.,  intimated  his  strong  opinion  that  there  would  have  been  no 
liability.  See  Amys  v.  Barton,  L.  R.  1912,  1  K.  B.  Div.  40,  where  a  farm  la- 
borer was  stung  by  wasps,  which,  while  apparently  resident  upon  the  farm, 
were  not  brought  or  maintained  upon  the  premises  by  the  farmer  as  part  of 
the  "furniture"  of  the  farm. 


FRITH  V.  LOUISIANIAX.  49 

telonious  attack  by  a  sober  fellow  workman,  or  even  rougb  sport 
or  horseplay  by  companions  who  might  have  been  expected  to  be  at 
work.  Although  it  may  be  that,  upon  the  facts  here  disclosed,  a  lia- 
bility on  the  part  of  the  employer  for  negligence  at  common  law  or 
under  the  employers'  liability  act  might  have  arisen,  this  decision 
does  not  rest  upon  that  ground,  but  upon  the  causal  connection  be- 
tween the  injury  of  the  deceased  and  the  conditions  under  which  the 
defendant  required  him  to  work.  A  fall  from  a  quay  by  a  sailor 
while  returning  from  shore  leave,  Kitchenham  v.  Oivners  of  S.  S. 
Johannesburg,  (1911)  i  K.  B.  523;  S.  C.  (1911)  A.  C.  417;  a  sting 
from  a  wasp,  Amys  v.  Barton,  (1912)  A.  C.  35,  all  have  been  held 
to  be  injuries  not  "arising  out  of"  the  employment.  But  we  find 
nothing  in  any  of  them  in  conflict  with  our  present  conclusion.  Nor 
is  there  anything  at  variance  with  it  in  Mitchinson  v.  Day  Brothers, 
(1913)  I  K.  B.  603,  where  it  was  held  that  injuries  resulting  from 
an  assault  by  a  drunken  stranger  upon  an  employe  engaged  at  his 
work  on  the  highway  did  not  arise  out  of  the  employment.  That 
was  a  quite  different  situation  from  the  one  now  before  us. 

It  follows  that  the  decree  must  be  reversed  and  a  new  decree 
entered  as  required  by  this  opinion. 

So  ordered. 


FRITH  z'.  OWNERS  OF  S.  S.  LOUISIANIAN. 
Court  of  Appeal,  England,  1912.     L.  R.  1912,  2  A'.  B.  155. 

An  appeal  by  the  employers  f ronr  an  award  of  Ilis  Honor 
Judge  Shand  of  the  Cou^ity  Court  at  Liverpool. 

The  deceased  was  a  seaman.  He  left  his  ship,  as  the  County 
Court  Judge  found,  without  leave.  The  ship  was  just  turning  pre- 
paratory to  leaving  the  quay,  when  the  deceased  returned,  hope- 
lessly intoxicated.  He  was  helped  along  the  quay  by  a  negro,  who, 
when  sufficiently  near  the  boat,  with  the  help  of  another  man  threw 
the  deceased  like  a  sack  of  sand  on  to  the  deck.  He  fell  on  his 
hands  and  knees.  After  a  moment  or  two  he  staggered  to  his  feet 
and  lurched  overboard  at  a  part  where  the  rail  had  not  yet  been 
replaced,  and  was  drowned.  Upon  the  hearing  of  an  application  for 
compensation  by  the  de])endents,  the  County  Court  Judge  held  that, 
as  the  man  had  returned  to  the  ship,  the  ambit  of  his  employment, 
the  accident  arose  out  of  and  in  the  course  of  his  employment. 

The  employers  appealed. 

Cozens-Hardy,  M.  R.  This  is  an  appeal  from  his  Honour 
Judge  Shand,  who  has  given  a  judgment  which  shows  very  great 
care,  and  which  I  regard  with  the  utmost  possible  respect.  The 
facts  which  he  finds,  and  which  are  not  in  dispute,  are  that  the  de- 
ceased was  a  sailor  on  a  ship  at  ^Mobile.  He  and  the  bo'sun.  with- 
out leave,  went  on  shore.  The  vessel  was  on  the  point  of  starting. 
It  had  been  close  to  the  quayside.  The  tug  was  at  work  pulling  it 
round.    The  bo'sun  was  able  to  walk  along  the  quay,  and  get  on  the 


50 


APPENDIX. 


vessel  and  go  to  his  room.  Frith  was  in  a  far  more  advanced  state 
of  intoxication.  The  Judge  finds  that  he  could  not  walk  alone.  A 
negro  helped  him  along  the  quay,  and  when  he  got  alongside  part  of 
the  ship,  the  negro,  with  another  man  who  happened  to  be  on  the 
quay,  pushed  him  on  to  the  deck,  so  that  he  fell  there  on  his  hands 
and  knees,  and  as  though  he  had  been  a  sack  of  sand.  He  was  ob- 
viously totally  incapacitated  from  discharging  any  of  the  duties 
which  appertained  to  his  office.  After  a  few  minutes  Frith  arose, 
reeled  backward,  and  fell  over  the  side  of  the  vessel,  which  by  that 
time  had  got  two  or  three  yards  from  the  quayside.  In  that  par- 
ticular part  of  the  vessel  the  rail  had  not  been  replaced.  The  Judge 
has  said,  if  the  sailor  got  on  board  the  ship  he  was  within  the  ambit 
of  his  employment,  and,  with  great  reluctance,  once  having  regained 
the  ship,  he  must  hold  that  the  accident  arose  out  of  and  in  the 
course  of  the  employment.  I  think  that  it  is  a  mistaken  view  of  the 
law.  You  have  to  satisfy  yourself  in  the  first  place — Has  the  acci- 
dent arisen  in  the  course  of  the  employment? — for  which  purpose 
the  question — Has  he  got  on  the  ship  ? — is  a  very  important  matter. 
Assume  that  he  is  in  the  course  of  his  employment,  the  question  then 
is,  Was  this  an  injury  by  accident  arising  out  of  the  employment, 
or  an  accident  arising  solely  by  reason  of  the  intoxication  of  this 
man? 

It  seems  to  me  perfectly  idle  to  say  that  the  matter  is  solved 
when  the  man  got  within  the  area  of  his  employment.  It  has  been 
held  that  a  sailor  will  not  recover  compensation  if  his  injuries  are 
due  to  skylarking,  or  unless  you  can  show  that  the  injury  by  acci- 
dent is  by  an  accident  which  was  in  some  way  connected  with  the 
work  he  was  doing  by  which  he  was  exposed  to  special  danger.  If 
the  man  had  been  engaged  on  the  mast  when  he  was  the  worst  for 
drink,  and  was  sent  up  there  in  that  state,  that  would  be  an  accident 
arising  out  of  the  employment.  Here  the  man  did  not  get  back  to 
his  work  in  a  condition  enabling  him  to  do  his  work.  The  injury 
was  not  due  to  an  accident  arising  out  of  his  employment,  but  due 
solely  to  hopeless  drunkenness.  I  have  the  satisfaction  of  feeling 
that  the  Judge  would  gladly  have  come  to  the  conclusion  w'hich  I 
have.  It  is  a  case  which  is  clearly  outside  the  whole  line  of  au- 
thorities. 

Fletcher  Moulton,  L.  J.  I  am  of  the  same  opinion.  I  think 
the  Judge  thought  if  the  sailor  w^as  on  board  the  ship  anything  that 
happened  would  be  within  the  Act.  That  is  not  so.  It  has  to  arise 
out  of  the  employment.  This  accident  had  nothing  to  do  with  the 
employment  except  that  he  was  in  the  same  place.  It  arose  entirely 
out  of  his  drunken  condition. 

Buckley,  L.  J.  In  Barnes  v.  Nunnery  Colliery  (1912),  A.  C. 
44;  gnte,  p.  195,  Earl  Loreburn,  L.  C,  says  this:  "The  question 
whether  or  not  an  injury  by  accident  arose  out  of  the  employment 
is  quite  different  from  the  question  whether  there  has  or  has  not 
been  misconduct.  An  arbitrator  has  to  ask  himself.  Was  the  injury 
by  accident  caused  by  something  reasonably  incidental  to  the  em- 
ployment, by  some  risk  to  which  a  workman     *     *     *     might  be 


BRYANT  V.   FISSELL.  5 1 

exposed  in  doing  what  he  had  to  do?"  Misconduct  is  no  defense  to 
a  claim  "arising  out  of  the  employment."  The  whole  question  is 
whether  this  accident  arose  out  of  his  employment.  I  have  not  the 
smallest  hesitation  in  answering  that  in  the  negative.  He  was  there 
drunk.  He  could  not  stand,  and  was  so  drunk  that  he  was  thrown 
on  the  deck  like  a  sack  of  sand.  He  staggered  to  his  legs  and  fell 
over  the  side  of  the  ship.  He  was  within  the  ambit  of  his  employ- 
ment, but  the  accident  did  not  arise  out  of  the  employment.  I  think 
the  appeal  ought  to  be  allowed. 
Appeal  allowed.^ 


BRYANT,  ADMX.  v.  FISSELL. 
Supreme  Court  of  New  Jersey,  1913.    84  N.  J.  L.  72. 

Trenciiard,  J.  This  writ  brings  up  for  review  a  judgment  of 
the  Essex  County  Common  Pleas  Court  in  an  action  brought  by 
Elizabeth  Bryant,  administratrix,  &c.,  and  widow  of  Richard  Bry- 
ant, deceased,  on  behalf  of  herself  and  the  next  of  kin,  to  recover 
from  Richard  Bryant's  employer  compensation  for  his  death. 

The  learned  trial  judge  found,  among  others,  the  following 
matters  of  fact :  "That  Richard  Bryant,  deceased,  was  on  the  251!! 
day  of  April,  1912,  employed  by  respondent  (prosecutor),  William 
H.  Fissell,  as  a  journeyman  carpenter;  that  on  the  25th  day  of 
April,  while  engaged  in  his  duties  as  carpenter,  in  the  employ  of  the 
respondent  (prosecutor),  he  received  injuries  by  reason  of  a  heavy 
bar  of  metal  falling  upon  his  head  from  t)ne  of  the  upper  stories  of 
a  building  being  erected  at  the  corner  of  r^Iarket  and  Ikaver  streets, 
in  the  city  of  Newark,  which  said  injuries  caused  the  death  of  the 
said  Richard  Bryant ;  that  the  falling  of  the  said  bar  of  metal  was 
not  caused  by  any  of  the  employes  of  the  said  respondent  (prose- 
cutor), but  by  an  employe  of  some  other  and  independent  contractor, 
who  had  work  to  do  on  said  building ;  that  said  injury  arose  out  of 
and  was  in  the  course  of  his  employment." 

Hitherto  the  pertinent  language  of  paragraph  seven  of  our  act, 
"by  accident  arising  out  of  and  in  the  course  of  his  employment," 
has  not  been  construed  by  this  court. 

But  the  language  is  identical  with  the  language  of  the  British 
Workmen's  Compensation  Act  of  1906  (6  Edw.  VH.,  c.  58),  and 
therefore  cases  in  that  jurisdiction  construing  that  language  in  their 
act  will  be  useful  in  construing  the  same  language  in  our  own. 

To  warrant  a  recovery  it  must  appear  that  Bryant's  death  was 
caused  by  (a)  an'accident.  (b)  arising  out  of.  and  (c)  in  the  course 

^Accord:  Nash  v.  5".  5".  Rangotiro,  L.  R.  1914.  3  K.  B.  978;  Renfrew  v. 
McCrae,  1914  Sess.  Cases  539  (Sc.  Ct.  Sess.)  ;  Frascr  v.  Rcddell  &  Co..  1914. 
Sess.  Cases  125  (Sc.  Ct.  Sess.),  engine-driver,  so  drunk  as  to  be  unfit  for 
his  work,  fell  from  the  foot  plate  of  his  engine  and  was  run  over  and  killed  : 
but  see  Williams  v.  Landnino  Co.,  59  Sol.  Jour.  &  W.  R.  286  (C.  A.  luig. 
1915.) 


52 


APPENDIX. 


of,  his  employment.  Even  though  the  injury  arose  out  of  and  in 
the  course  of  the  employment,  if  it  be  not  an  "accident,"  within  the 
purview  of  the  act,  there  can  be  no  recovery.  Even  if  there  be  an 
accident  which  occurred  "in  the  course  of"  the  employment,  if  it  did 
not  arise  "out  of  the  employment,"  there  can  be  no  recovery ;  and 
even  though  there  be  an  accident  which  arose  "out  of  the  employ- 
ment," if  it  did  not  arise  "in  the  course  of  the  employment,"  there 
can  be  no  recovery.  Fitzgerald  v.  Clarke  &  Son  (1908),  2  K.  B. 
796;  Craske  v.  Wigan  (igog),  2  K.  B.  635. 

The  burden  of  furnishing  evidence  from  which  the  inference 
can  be  legitimately  drawn  that  the  death  of  an  employe  was  caused 
by  "an  accident  arising  out  of  and  in  the  course  of  his  employment" 
rests  upon  the  claimant.  Barnabas  v.  Bersham  Colliery  Co.  (1910), 
102  L.  T.  621 ;  and  on  appeal  (1910),  103  L.  T.  513. 

For  an  accident  to  arise  out  of  and  in  the  course  of  the  em- 
ployment, it  must  result  from  a  risk  reasonably  incidental  to  the 
employment.  As  was  said  by  Mr.  Lord  Justice  Buckley  in  Fitsgcr- 
ald  V.  Clarke  &  Son  (1908),  2  K.  B.  796:  "The  words  'out  of  point. 
I  think,  to  the  origin  and  cause  of  the  accident ;  the  words  'in  the 
course  of  to  the  time,  place  and  circumstances  under  which  the  ac- 
cident takes  place.  The  former  words  are  descriptive  of  the  char- 
acter or  quality  of  the  accident.  The  latter  words  relate  to  the  cir- 
•  cumstances  under  which  an  accident  of  that  character  or  quality 
takes  place.  The  character  or  quality  of  the  accident  as  conveyed 
by  the  words  'out  of  involves,  I  think,  the  idea  that  the  accident  is 
in  some  sense  due  to  the  employment.  It  must  be  an  accident  result- 
ing from  a  risk  reasonably  incident  to  the  employment." 

We  conclude,  therefore,  that  an  accident  arises  "in  the  course 

of  the  employment"  if  it  occurs  while  the  employe  is  doing  what  a 

.    man  so  employed  may  reasonably  do  within  a  time  during  which  he 

is  employed,  and  at  a  place  where  he  may  reasonably  be  during  that 

time. 

That  the  finding  of  fact  in  the  present  case  justified  the  ^con- 
clusion that  the  accident  to  Bryant  occurred  "in  the  course  of"  his 
employment,  is  beyond  dispute. 

We  are  also  of  the  o])inion  that  the  conclusion  of  the  Common 
Pleas  judge  that  the  accident  arose  "out  of"  the  employment  was 
likewise  justified. 

The  prosecutor  argues  that  there  can  be  no  recovery  because 
the  bar  of  metal  which  killed  Bryant  was  caused  to  fall  by  a  work- 
man of  an  independent  contractor  doing  work  on  the  same  building. 
We  think  there  is  no  merit  in  this  contention. 
In  Challis  v.  London  and  Sontlnvcstcrn  Railway  Co.  (1905).  2 
K.  B.  154,  an  engine  driver,  Avhile  driving  a  train  under  a  bridge, 
was  injured  by  a  stone  dropped  by  a  boy  from  the  bridge.^^  It  was 
held  that  his  injuries  were  caused  by  an  accident  arising  "out  of" 
and  in  the  course  of  his  employment.  Master  of  the  Rolls  Collins 
said:  "We  must,  I  think,  approach  the  question  whether^  what  oc- 
curred was  a  risk  incidental  to  the  employment  of  an  engine  driver 
from  the  standpoint  that  a  train  in  motion  has  great  attractions  for 


liRYANT   V.    FISSELL.  53 

mischievous  boys  as  an  object  at  which  to  discharge  missiles.  It 
seems  to  me  that  the  Legislature,  in  framing  the  Workman's  Com- 
pensation Act  (1897),  intended  to  provide  for  the  risks  of  accident 
which  are  within  the  ordinary  scope  of  the  particular  employment 
in  which  the  workman  is  engaged.  No  doubt  the  act  does  not  use 
the  express  'risks  incidental  to  the  employment,'  but  the  interpre- 
tation of  the  words  'accident  arising  out  of  and  in  the  course  of  the 
employment'  appears  to  me  necessarily  to  involve  the  consideration 
of  the  question  what  risks  are  commonly  incidental  to  the  particular 
employment  in  question."  Lord  Justice  Cozens-IIardy  said  that  the 
risk  of  such  an  occurrence  was  one  which  might  reasonably  be 
looked  upon  as  incidental  to  the  employment  of  an  engine-driver, 
though  it  might  not  be  incidental  to  other  employments,  and  Armi- 
tage  v.  Lancashire  and  Yorkshire  Raikvay  Co.  (1902),  2  K.  B.  178 
(upon  which  the  prosecutor  in  this  case  relies),  was  distinguished 
on  the  ground  that  where  the  accident  w^as  not  one  of  the  risks  to 
which  it  was  within  the  scope  of  the  employment  of  the  workman 
to  submit. 

We  conclude,  therefore,  that  an  accident  arises  "out  of"  the 
employment  when  it  is  something  the  risk  of  which  might  have  been 
contemplated  by  a  reasonable  person,  when  entering  the  employ- 
ment as  incidental  to  it.^  That  this  is  so  appears  from  an  examina- 
tion of  Armitage  v.  Lancashire  and  Yorkshire  Raikvay  Co.,  supra; 
Collins  V.  Collins  (1907),  2  L  R.  104;  Murphy  v.  Berwick  (1909), 
43  Ir.  L.  T.  126;  and  Blake  v.  Head  (1912),  106  L.  T.  822,  in  each 
of  which  recovery  was  denied  because  the  act  of  the  third  party  was 
not  a  risk  reasonably  to  be  contemplated  by  the  employe  in  under- 
taking the  employment. 

A  risk  is  incidental  to  the  employment  wdien  it  belongs  to  or  is 
connected  with  what  a  workman  has  to  do  in  fulfilling  his  contract 
of  service.  Pope  v.  Hill's  Plymouth  Co.  (1910),  102  L.  T.  632,  and 
on  appeal  (1912),  105  L.  T.  678. 

In  the  present  case  the  Common  Pleas  judge  found  as  a  fact 
that  decedent,  while  at  work  for  his  employer,  the  prosecutor,  as  a 
journeyman  carpenter,  on  a  building  in  course  of  erection,  was  killed 
by  the  falling  of  a  bar  of  metal  from  one  of  the  upper  stories,  which 
was  caused  to  fall  by  a  workman  of  an  independent  contractor  who 
had  work  on  the  same  building.  Under  the  authorities  cited,  the 
judge  was  justified  in  concluding  that  his  death  was  an  accident 
arising  "out  of"  his  employment.  The  inference  was  clearly  per- 
missible that  it  was  one  the  risk  of  which  might  have  been  contem- 
plated by  a  reasonable  person  when  entering  the  employment,  as 
incidental  to  it. 

The  judgment  will  be  affirmed,  with  costs. - 

*  Compare  Fitzgibbons,  L.  J.,  in  Collins  v.  Collins  (1907).  2  Tr.  R.  104.  p. 
108,  "I  can  not  vmderstand  how  an  occurrence  could  arise  out  of  and  in  the 
course  of  a  particular  employment,  unless  it  was  something  the  risk  of  which 
might  have  been  contemplated  by  a  reasonable  person  when  entering  the  em- 
ploj^ment  as  incidental  to  it."  „    .     t    j    <-  c  r\\  ■ 

'      'Compare  Biddinger  v.  Champion  Iron  Co.,  Bulletin  Ind.  Com.  ot  Ohio, 
Vol.  1,  No.  7,  p.  70. 


54  APPENDIX, 

PLUMB  V.  COBDEN  FLOUR  MILLS  CO. 
House  of  Lords,  1913.     109  Law  Times  Rep.  759. 

A  workman,  who  was  employed  at  a  flour  mill  to  stack  sacks 
by  manual  labor,  made  an  improper  use  with  that  object  of  the  re- 
volving shafting  of  certain  machinery  which  was  erected  in  the  mill. 
He  was  caught  by  the  shafting  and  severely  injured. 

Appeal  {in  forma  pauperis)  from  an  order  of  the  Court  of 
Appeal  made  on  the  29th  January,  19 13,  allowing  with  costs  an  ap- 
peal by  the  Cobden  Flour  Mills  Company  Limited  against  an  award 
of  the  judge  of  the  County  Court  of  Denbighshire  holden  at  Wrex- 
ham, dated  the  loth  December,  1912,  in  an  arbitration  under  the 
Workmen's  Compensation  Act  1906. 

The  County  Court  judge  found  that  although  the  method  of 
doing  the  work  adopted  by  the  workman  was  unwise,  it  was  not 
adopted  for  the  greater  convenience,  pleasure,  or  profit  of  the  work- 
man, but  the  better  to  discharge  his  duty  in  the  interests  of  his  em- 
ployers ;  and  that  the  injury  was  caused  by  accident  arising  out  of 
and  in  the  course  of  his  employment. 

The  Court  of  Appeal  (Cozens-Hardy,  M.  R.,  Buckley  and 
Hamilton,  L.  JJ.)  reversed  this  decision,  holding  that  the  accident 
did  not  arise  out  of  the  employment. 

The  facts  were  stated  by  Lord  Dunedin  in  his  judgment  as 
follows : 

The  appellant  was  a  foreman  worker  in  the  employment  of  the 
respondents;  and  his  duties  on  the  day  on  which  he  ^vas  injured 
consisted  in  the  task,  assisted  by  other  workmen,  of  stacking  bundles 
of  sacks  in  a  room  in  the  respondents'  premises.  The  work  was 
done  by  hand.  In  the  room  in  which  this  was  being  done  there  ran 
along  the  ceiling  a  shaft  which  transmitted  power  to  machines  in 
other  rooms,  but  there  was  no  pulleys  on  the  shaft  in  this  room,  and 
it  was  not  used  in  connection  with  any  machine  in  this  room.  The 
stack  had  arrived  at  the  height  of  about  seven  feet,  and  the  bundles 
could  no  longer  be  thrown  up  from  the  bottom.  The  appellant,  who 
was  on  the  top  of  the  stack,  then  improvised  a  method  of  getting  up 
the  sacks.  He  put  a  rope  round  the  revolving  shafting,  attached  one 
end  to  the  bundle,  and  sufficient  tension  being  put  on  the  other  end 
of  the  rope  to  ensure  friction,  the  sack  was  drawn  up  as  by  a  crane. 
A  bundle  of  sacks  was  drawn  too  far,  and  stuck  between  the  shaft- 
ing and  the  ceiling.  The  appellant,  to  free  the  bundle,  cut  the  rope. 
The  bundle  fell,  and  falling  on  the  bundle  on  which  the  appellant 
was  standing,  caused  him  to  lose  his  balance.  In  his  effort  to  re- 
cover equilibrium  one  arm  got  entangled  with  the  rope  which  was 
round  the  shafting,  he  was  pulled  over  the  shafting,  and  severely 
injured. 

Lord  Dunedin.  My  Lords :  I  have  not  the  slightest  doubt  as 
to  the  soundness  of  the  judgment  appealed  from.  As,  however,  we 
had  the  benefit  of  a  very  able  judgment  and  a  copious  citation  of 


PLUMB  V.   CODDF.X   l-XOUR   MILLS  CO.  55 

authorities,  it  may  be  of  use  to  formulate  the  conclusions  at  which 

1  have  arrived. 

The  facts  of  the  case  are  simple.  (His  Lordship  then  slated 
the  facts  as  set  out  above,  and  continued:) 

The  question  for  decision  is,  did  the  accident  arise  out  of  his 
amployment  ?  The  Court  of  Appeal  held  that  it  did  not,  and  I  agree 
with  them. 

It  is  well,  I  think,  in  considering  the  cases,  which  are  numerous, 
to  keep  steadily  in  mind  that  the  question  to  be  answered  is  always 
the  question  arising  upon  the  very  words  of  the  statute.  It  is  often 
useful  in  striving  to  test  the  facts  of  a  particular  case  to  express  the 
test  in  various  phrases.  But  such  phrases  are  merely  aids  to  solv- 
ing the  original  question,  and  must  not  be  allowed  to  dislodge  the 
original  words.  Most  of  the  erroneous  arguments  which  are  put 
before  the  courts  in  this  branch  of  the  law^  will  be  found  to  depend 
on  disregarding  this  salutary  rule.  A  test  embodied  in  a  certain 
phrase  is  put  forward,  and  only  put  forward  by  a  judge  in  consider- 
ing the  facts  of  the  case  before  him.  That  phrase  is  seized  on  and 
treated  as  if  it  afforded  a  conclusive  test  for  all  circumstances,  with 
the  result  that  a  certain  conclusion  is  plausibly  represented  as  rest- 
ing upon  authority,  which  would  have  little  chance  of  being  accepted 
if  tried  by  the  w^ords  of  the  statute  itself. 

Under  this  reservation,  I  propose  shortly  to  examine  some  of 
the  tests  which  have  been  found  useful  in  the  various  cases  which 
have  occurred  where  the  point  was  whether  or  not  the  accident  arose 
out  of  the  employment. 

The  first  and  most  useful  is  contained  in  the  expression,  scope 
or  sphere  of  employment.  The  expression  was  used  in  an  earlier 
case,  the  case  of  Whitehead  v.  Reader,  84  L.  T.  Rep.  514;  (1901) 

2  K.  B.  48,  by  Collins,  L.  J.,  who  pointed  out  that  the  question  of 
whether  a  servant  had  violated  an  order  was  not  conclusive  of 
whether  an  accident  so  caused  did  or  did  not  arise  out  of  the  em- 
ployment— and  put  as  the  test,  Did  the  order  which  was  disobeyed 
limit  the  sphere  of  the  employment,  or  was  it  merly  a  direction  not 
to  do  certain  things,  or  to  do  them  in  a  certain  way  within  the  sphere 
of  the  employment? 

In  the  case  of  Comvay  v.  Pumpherston  Oil  Co.,  191 1,  S.  C. 
660,  in  the  Court  of  Session,  I  adopted  the  phrase  of  Collins,  L.  J., 
and  pointed  out  that  there  were  two  sorts  of  ways  of  frequent  oc- 
currence in  which  a  workman  might  go  outside  the  sphere  of  his 
employment — the  first,  wdicn  he  did  work  which  he  was  not  engaged 
to  perform,  and  the  second,  when  he  went  into  a  territory  with 
which  he  had  nothing  to  do.  This  case  was  approved  and  followed 
by  the  Court  of  Appeal  in  Harding  v.  Brynddu  Colliery  Company. 
105  L.  T.  Rep.  55;  (1911)  2  K.  B.  747.  The  expression  has  been 
used  in  many  other  cases  which  it  would  be  tedious  and  unnecessary 
to  cite. 

I  am  of  opinion  that  this  test  is  both  sound  and  convenient,  but 
it  is  not  exhaustive,  and  it  is  not  the  most  convenient  for  every  state- 
ment of  facts.    Taken  as  it  is,  there  may,  and  often  will  be,  circum- 


56  APPENDIX. 

Stances  in  which  the  application  may  be  difficult  and  opinions  may 
differ. 

I  pause  here  to  notice  an  ingenious  argument  proposed  by  Mr. 
Davenport,  founded  on  the  cases  I  have  cited.  Founding  on  the 
cases  of  Conway  v.  Puiuphcrston  Oil  Company  {tihi  sup.)  and 
Harding  v.  Brynddu  Colliery  Company  {iibi  sup.),  he  said:  "If  this 
man  had  been  told  not  to  touch  this  shaft  he  would  have  received 
compensation  for  he  was  doing  his  master's  work,  and  it  would  have 
been  merely  disobedience.  Why  should  he  be  worse  off  because  he 
was  told  nothing  about  the  shaft?"  The  fallacy  of  this  consists  in 
not  adverting  to  the  fact  that  there  are  prohibitions  which  limit  the 
sphere  of  employment,  and  prohibitions  which  only  deal  with  con- 
duct within  the  sphere  of  employment.  A  transgression  of  the  latter 
class  leaves  the  sphere  of  employment  where  it  was,  and  conse- 
quently will  not  prevent  recovery  of  compensation.  A  transgression 
of  the  former  class  carries  with  it  the  result  that  the  man  has  gone 
outside  the  sphere. 

In  the  case  of  Barnes  v.  Nunnery  Colliery  Company,  105  L.  T. 
Rep.  961;  (1912)  A.  C.  44,  Lord  Moulton  put  it  thus:  "The  boy 
was  guilty  of  disobedience;  was  this  out  of  the  scope  of  his  employ- 
ment?" Though  Lord  Moulton  arrived  at  a  different  result  on  the 
facts  from  that  of  the  majority  of  the  Court  of  Appeal,  and  that  of 
this  House,  yet  no  fault  is  to  be  found  with  the  question  as  put,  and 
in  this  House  the  Lord  Chancellor  (Earl  Loreburn)  said  the  same 
thing  in  other  words :  "Nor  can  you  deny  him  compensation  on  the 
ground  only  that  he  was  injured  through  breaking  rules.  But  if  the 
thing  he  does  imprudently  or  disobediently  is  different  in  kind  from 
anything  he  was  required  or  expected  to  do,  and  also  is  put  outside 
the  range  of  his  service  by  a  genuine  prohibition,  then  I  should  say 
that  the  accidental  injury  did  not  arise  out  of  his  employment." 
The  Lord  Chancellor  there  put  the  test  cumulatively,  because  that 
fitted  the  facts  of  the  case  in  which  boys  in  a  mine  rode  in  tubs,  a 
thing  they  were  not  employed  to  do,  and  which  they  had  been  ex- 
pressly told  not  to  do.  But  I  imagine  the  proposition  is  equally  true 
if  he  had  expressed  it  disjunctively,  and  used  the  word  "or"  instead 
of  "also." 

In  the  cases  in  which  there  is  no  prohibition  to  deal  with,  the 
sphere  must  be  determined  upon  a  general  view  of  the  nature  of 
the  employment  and  its  duties.  If  the  workman  was  doing  those 
duties  he  was  within  it,  if  not  he  was  without  it,  or,  to  use  my  own 
words  in  the  case  of  Kerr  v.  IVilliam  Baird  (1911,  S.  C.  701),  an 
accident  does  not  arise  "out  of  employment"  if  at  the  time  the  work- 
man is  arrogating  to  himself  duties  which  he  was  neither  engaged 
nor  entitled  to  perform. 

As  I  have  already  said,  however,  the  question  of  within  or  with- 
out the  sphere  is  not  the  only  convenient  test.  There  are  others 
which  are  more  directly  useful  to  certain  classes  of  circumstances. 

One  of  these  has  been  frankly  phrased  interrogatively.  Was 
the  risk  one  reasonably  incidental  to  the  employment?  And  the 
question  may  be  further  amplified  according  as  we  consider  what  the 


PLUMB  V.  COBDEN   FLOUR  MILLS  CO.  57 

Workman  must  prove  to  show  that  a  risk  was  an  employment  risk, 
or  what  the  employer  must  prove  to  show  it  was  not  an  employment 
risk. 

As  regards  the  first  branch,  I  think  the  point  is  very  accurately 
expressed  by  Cozens-Hardy,  M.  R.,  in  the  case  of  Craske  v.  Wicjan 
(lOO  L.  T.  Rep.  6;  [1909]  2  K.  B.  635),  where  he  says,  "It  is  not 
enough  for  the  applicant  to  say,  'The  accident  would  not  have  hap- 
pened if  I  had  not  been  engaged  in  that  employment  or  if  I  had  not 
been  in  that  particular  place.'  He  must  go  further,  and  must  say, 
The  accident  arose  because  of  something  I  was  doing  in  the  course 
of  my  employment,  or  because  I  was  exposed  by  the  nature  of  my 
employment  to  some  peculiar  danger.'  " 

As  regards  the  second  branch,  a  risk  is  not  incidental  to  the  em- 
ployment when  either  it  is  not  due  to  the  nature  of  the  employment 
or  when  it  is  an  added  peril  due  to  the  conduct  of  the  servant  him- 
self. Illustrations  of  the  first  proposition  will  be  found  in  all  the 
cases  where  the  risk  has  been  found  to  be  a  risk  common  to  all  man- 
kind, and  not  accentuated  by  the  incidents  of  the  employment.  In 
application  to  facts  the  dividing  line  is  sometimes  very  nearly  ap- 
proached, but  I  think  that  in  all  the  cases  the  principle  to  be  applied 
has  been  rightly  stated.  The  cases  themselves  are  too  numerous  to 
cite,  but  I  may  mention  as  illustration  the  two  lightning  cases  of 
Kelly  V.  Kerry  County  Council  (42  Ir.  L.  T.  Rep.  23)  and  Andrcxv 
V.  Failszvorth  Industrial  Society  Limited  (90  L.  T.  Rep.  61 1  ;  [  1904] 
2  K.  B.  32),  where  on  the  facts  the  stroke  of  lightning  was  held,  in 
the  Irish  case,  to  be  a  common  risk  of  all  mankind  ;  in  the  English 
case,  a  risk  to  which,  by  the  conditions  of  employment,  the  work- 
man'was  specially  exposed.  Both  these ^ases,  in  my  humble  judg- 
ment, were  rightly  decided. 

An  illustration  of  the  second  proposition  will  be  found  ni  the 
case  already  cited  of  Barnes  v.  Nunnery  Colliery  Company  {ubi 
sup.),  where  Lord  Atkinson  said:  "The  unfortunate  deceased  m 
this  case  lost  his  life  through  the  new  and  added  i)eril  to  which,  by 
his  own  conduct,  he  exposed  himself,  not  through  any  peril  which 
his  contract  of  service  directly  or  indirectly  involved  or  at  all  obliged 
him  to  encounter." 

Lord  Atkinson  added  the  words  "It  was  not,  therefore,  reason- 
ably incidental  to  his  employment.  That  is  the  crucial  test."  In  the 
case  of  Watkins  v.  Guest,  Keen,  and  Nettlefolds  Limited,  106  L.  T. 
Rep.  818,  Lord  Moulton  criticised  this  sentence  as  cutting  out  the 
sub-section  as  to  serious  and  wilful  misconduct.  With  great  defer- 
ence to  my  noble  and  learned  friend,  I  think  he  was  forgetting  that 
Lord  Atkinson  was  only  applying  a  test,  and  not  substituting  it  for 
the  words  of  the -Act.  I  can  not  see  that  the  serious  and  wilful  mis- 
conduct section  reallv  introduces  any  difficulty.  Reverting  to  the 
words  of  the  Act,  you  have  first  to  show  that  the  accident  arises  out 
of  the  emplovment.  Then  in  the  older  Act  came  the  rider  that  even 
when  that  was  so  the  workman  still  could  not  recover  if  the  accident 
was  due  to  the  serious  and  wilful  misconduct  of  the  workman  him- 
self—a  rider  limited  in  the  later  Act  to  cases  where  death  has  not 


58  APPENDIX. 

ensued.  But  the  very  fact  that  it  is  a  rider  postulates  that  the  acci- 
dent is  of  the  class  which  arises  out  of  the  employment.  A  man  may 
commit  such  a  piece  of  serious  and  wilful  misconduct  as  will  make 
what  he  has  done  not  within  the  sphere  of  his  employment.  But  if 
death  ensues  and  his  dependents  fail  to  get  compensation  it  will  not 
be  because  he  was  guilty  of  serious  and  wilful  misconduct,  but  be- 
cause the  thing  done,  irrespective  of  misconduct,  was  a  thing  outside 
the  scope  of  his  employment. 

Tried  by  either  of  the  two  tests  I  have  examined,  the  appellant 
in  this  case  seems  to  me  equally  to  fail.  But  he  does  not  fail,  be- 
cause he  was  acting  outside  the  sphere  of  his  employment,  or  be- 
cause by  his  conduct  he  brought  on  himself  a  new  and  added  peril, 
but  because  he  has  failed  to  show  any  circumstances  which  could 
justify  a  finding  that  the  accident  to  him  arose  "out  of  his  employ- 
ment,'' 

Lord  Atkinson. — I  concur. 

Appeal  dismissed.^ 


"■Accord:  Marriott  v.  Brett  &  Benny,  Ltd.,  5  B.  W.  C.  C.  145  (C.  A. 
Eng.,  1911),  baker,  desiring  to  mix  his  dough  in  absence  of  engineer,  started 
engine  himself,  though  forbidden  to  do  so,  Whitcman  v.  Clifdcn,  6  B.  W.  C. 
C.  49  (C.  A.  Eng.,  1913),  boy  employed  to  dust  rooms  on  upper  story,  on  his 
way  up  to  his  work  in  a  lift  undertook  to  dust  the  top  of  the  lift  and  in  so 
doing  was  injured;  Davics  V.  Crown  Perfumery  Co.,  6  B.  W.  C.  C.  649  (C. 
A.  Eng.,  1913),  soap  stamper,  who  was  supposed  to  make  himself  "handy 
about  the  place"  when  not  stamping  soap,  was  injured  from  a  machine  in 
motion  while  assisting  another  workman  to  remove  a  piece  of  soap  which 
stopped  the  use  of  the  machine;  Kerr  v.  Baird,  1911  Sess.  Cases  701  (Sc.  Ct. 
Sess.),  miner  arranged  and  fired  a  shot,  though  prohibited  to  do  so,  a  special 
"shot  firer"  being  employed  to  do  such  work,  compare  Smith  v.  Fife  Coal  Co., 
30  T.  L.  R.  502  (H.  of  L.  1914)  ;  McDiarmid  v.  Ogilvy  Bros.,  50  Sc.  L.  R.  883 
(Sc.  Ct.  Sess.  1913),  6  B.  W.  C.  C.  878,  workman  employed  to  work  as  an 
under-man  at  a  mangle,  on  certain  days  he  assisted  the  head  man  to  clean 
the  mangle  but  such  cleaning  was  expressly  forbidden  when  the  machine  was 
in  motion,  on  a  day  other  than  a  cleaning  day  and  in  the  absence  of  the  head 
man  he  attempted  to  oil  the  machine  while  it  was  in  motion  and  was  in- 
jured; and  see  Wetnyss  Coal  Co.  v.  Symon  and  Rivie  v.  Cumming,  cited  in 
note  1  to  McDaid  v.  Steel,  post,  p.  64.  See  also,  Smith  v.  Stanton  Iron 
Works,  6  B.  W.  C.  C.  239  (C.  A.  Eng.,  1913). 

The  Irish  courts  on  the  other  hand,  seem  to  regard  the  overzealous  act 
of  a  servant,  who  having  "too  great  an  appetite  for  work"  goes  beyond  his 
prescribed  duties  and,  in  a  misguided  effort  to  further  his  master's  interests, 
does  work  assigned  to  another  employe  does  not  forfeit  his  right  to  com- 
pensation, Greer  v.  Lindsav  Thompson,  46  Ir.  L.  T.  89,  5  B.  W.  C.  C.  586 
(C.  A.  Ir.,  1912),  Tobin  v.  Hcarn,  (1910)  2  Ir.  R.  (K.  B.)  639. 

In  the  following  cases  the  orders  disobeyed  were  held  to  prescribe  the 
method  of  work  and  not  to  define  or  "limit  the  sphere  of  the  employ- 
ment" and  compensation  was  allowed,  Mazvdslcy  v.  West  Lehigh  Colliery  Co., 
5  B.  W.  C.  C.  80  (C.  A.  Eng.,  1911),  a  workman  who  was  employed  to  oil 
machinery  did  so  when  it  was  in  motion  though  this  was  expressly  for- 
bidden, compare  McDiarmid  v.  Ogilvv  Bros.,  50  Sc.  L.  R.  883  (Sc.  Ct.  Sess. 
1913).  6  B.  W.  C.  C.  878,  Chitton  v.  Blair  &  Co.,  30  L.  T.  R.  623  (C.  A.  Eng.. 
1914),  a  workman  though  ordered  to  do  his  work  standing,  sat  down  while  at 
work  and  in  consequence  got  his  foot  caught  in  the  moving  machinery,  and 
.Astley  V.  Evans,  L.  R.  1911,  1  K.  B.  1036,  1911  A.  C.  674,  a  brakeman  to  make 
his  work  easier  tried  to  climb  from  one  moving  train  to  another ;  compare  with 
the  last  two  cases  Revie  v.  Cumming,  note  to  McDaid  v.  Steel,  p.  64;  Pepper 


BARNES  V.  NUNNERY  COLLIERY  CO.  59 

BARNES  V.  NUNNERY  COLLIERY  COMPANY,  LIMITED. 
House  of  Lords,  1912.    L.  R.  1912,  Appeal  Cases  44. 

A  boy  employed  at  a  colliery,  noticing  that  an  endless  rope  hav- 
ing a  number  of  empty  tubs  attached  to  it  was  about  to  start  for  a 
level  where  his  work  was,  jumped  into  the  front  tub  with  three 
other  boys  in  order  to  ride  to  his  work  instead  of  walking  as  he 
ought  to  have  done,  and  in  the  course  of  the  journey  his  head  came 
in  contact  with  the  roof  of  the  mine  and  he  was  killed.  It  was  a 
common  practice  for  the  boys  to  ride  to  their  work  in  the  tubs,  but 
it  was  expressly  forbidden  and  the  prohibition  was  enforced  as  far 
as  possible. 

Appeal  from  an  order  of  the  Court  of  Appeal  setting  aside  an 
award  made  by  the  judge  of  the  Sheffield  County  Court  under  the 
Workmen's  Compensation  Act,  1906,  in  favor  of  the  appellant. 

Earl  Loreburn,  L.  C.  My  Lords,  the  more  I  see  of  these  cases 
under  the  Workmen's  Compensation  Act,  the  more  I  feel  that  nearly 
all  of  them  are  in  reality  pure  questions  of  fact,  in  regard  to  which 
the  only  function  of  a  Court  is  to  interpose  when  there  is  no  evi- 
dence to  support  a  particular  finding. 

The  question  whether  or  not  an  injury  by  accident  arose  out 
of  the  employment  is  quite  different  from  the  question  whether 
there  has  or  has  not  been  misconduct.  An  arbitrator  has  to  ask  him- 
self, was  the  injury  by  accident  caused  by  something  reasonably 
incidental  to  the  employment,  by  some  risk  to  which  a  workman, 


V.  Sayer,  30  T.  L.  R.  621  (C.  A.  Eng.,  1914).  farm  overseer  in  attempting  to 
get  keys  to  a  poultry  housfe  vaulted  on  to  the  window  ledge  and  losing  his 
balance  fell  and  was  killed;  Sanderson  v.  Wright,  Ltd..  30  T.  L.  R.  279  (C. 
A.  Eng.,  1914),  workman  employed  to  inspect  scrap  iron,  which  required 
him  to  cross  railway  tracks,  contrary  to  express  orders  attempted  to  cross 
while  shunting  was  going  on,  McWilliams  v.  Great  Northern  R.  Co.,  1914,  1 
Scot.  L.  T.  294  (Ct.  Sess.),  railway  porter  in  order  to  remove  baggage  more 
quickly  got  on  foot-board  of  a  carriage  of  a  moving  train. 

Where  the  workman  was  when  last  seen  engaged  in  the  work  assigned 
to  him,  the  burden  of  proof  rests  on  the  employer  to  show  that  there  was  a 
departure  from  his  prescribed  sphere  of  employment  rather  than  reckless- 
ness in  doing  his  appointed  task,  Astley  v.  Evans,  L.  R.  1911,  1  K.  B.  1037, 
1911  A.  C.  674. 

Even  disobedience  of  orders,  though  it  enhances  the  perils  of  the  em- 
ployment, if  necessary  for  the  employe's  safety,  does  not  put  the  employe 
out  of  the  ambit  of  his  employment  nor  prevent  an  injury  resulting  there- 
from from  arising  out  of  the  emplovment,  Edmunds  v.  5".  S.  Pet  erst  on,  28  T. 
L.  R.  18  (C.  A.  Eng.,  1911),  5  B.  W.  C.  C.  157.  ship's  engineer  asphyxiated 
by  fumes  from  a  stove  which,  contrary  to  orders,  he  had  lighted  in  his  cabin 
on  an  intensely  cold  night. 

Nor  will  disobedience  of  even  those  orders  which  limit  the  sphere  of  em- 
ployment bar  recovery  unless  the  workman  is  injured  in  consequence  of  such 
disobedience.  Smith  v.  Fife  Coal  Co.,  30  T.  L.  R.  502  (H.  of  L.  1914).  where 
a  miner  who  in  disobedience  of  orders  connected  the  detonating  wire  to  the 
charge  but  did  not  fire  the  shot  which  was  done  by  a  shot  firer.  who  neglected 
his  duty,  which  was  to  see  before  doing  so  that  all  persons  in  the  vicnuty, 
which  of  course  included  the  injured  miner,  had  taken  shelter. 


6o  APPENDIX. 

liable  like  other  men  to  be  careless  and  take  short  cuts,  might  be 
exposed  in  doing  what  he  had  to  do? 

The  difficulty  really  is  in  applying  this  to  the  particular  case. 
You  can  not  say  that  this  boy  was  employed  to  be  prudent  and  cau- 
tious, and  therefore  deny  him  compensation  if  by  reason  of  his 
want  of  prudence  and  caution  he  meets  with  an  accidental  injury.^ 
Nor  can  you  deny  him  compensation  on  the  ground  only  that  he  was 
injured  through  breaking  rules.  But  if  the  thing  he  does  impru- 
dently or  disobediently  is  different  in  kind  from  anything  he  was 
required  or  expected  to  do  and  also  is  put  outside  the  range  of  his 
service  by  a  genuine  prohibition,  then  I  should  say  that  the  acci- 
dental injury  did  not  arise  out  of  his  employment. 

I  mean  that  I  should  say  so  if  I  were  a  judge  of  the  fact,  for 
it  is  purely  a  question  of  fact.  And  where  the  county  court  judge 
has  decided  it,  a  Court  of  law  has  no  right  to  set  the  award  aside 
unless  it  is  satisfied  that  there  was  no  evidence  which  could  justify 
such  a  conclusion.  It  is  like  the  case  of  a  judge  ruling  that  there  is 
no  case  to  go  to  the  jury. 

The  Court  of  Appeal  has  by  a  majority  come  to  the  view,  for 
such  it  is  in  effect,  that  there  was  no  evidence,  and  your  Lordships 
take  the  same  view.  I  am  not  prepared  to  differ.  It  is  not  by  com- 
paring the  facts  of  one  case  with  the  facts  of  other  cases  and  rea- 
soning by  analogy  from  the  comparison  that  a  safe  conclusion  can 
be  reached,  but  by  considering  each  time  the  meaning  of  the  Act. 

Lord  Atkinson.  In  these  cases  under  the  Workmen's  Com- 
pensation Act  a  distinction  must,  I  think,  always  be  drawn  between 
the  doing  of  a  thing  recklessly  or  negligently  which  the  workman  is 
employed  to  do,  and  the  doing  of  a  thing  altogether  outside  and 
unconnected  with  his  employment.  A  peril  which  arises  from  the 
negligent  or  reckless  manner  in  which  an  employe  does  the  work 
which  he  is  employed  to  do  may  well  be  held  in  most  cases  rightly 
to  be  a  risk  incidental  to  his  employment.  Not  so  in  the  other  case. 
For  example,  if  a  master  employs  a  servant  to  carry  his  (the  mas- 
ter's) letters  on  foot  across  the  fields  on  a  beaten  path,  or  on  foot 
by  road  to  a  neighboring  post  office,  and  the  servant,  having  got 
the  letters,  went  to  the  stables,  mounted  his  master's  horse,  and  pro- 
ceeded to  ride  across  the  country  to  the  post  office,  was  thrown  and 
killed,  or  went  to  his  master's  garage,  took  out  his  motor  car,  and 
proceeded  to  drive  by  road  to  the  post  office,  came  into  collision  with 
something,  and  was' killed,  it  could  not  be  held,  I  think,  according 
to  reason  or  law,  that  the  injury  to  the  servant  arose  out  of  his 
employment,  though,  in  one  sense,  he  was  about  to  do  ultimately 
the  thing  he  was  employed  to  do,  namely,  to  bring  his  master's  let- 
ters to  the  post.2  j„  guf-i^  a  case  the  servant  puts  himself  into  a 
place  he  was  not  employed  to  be  in,  and  had  no  right  to  be  in — the 


*  Compare  the  case  of  Wemyss  Coal  Co.  v.  Symon,  note  1  to  McDaid  v. 

Steel,  post,  p.  64.  •  c    r)     \\T 

''This  is  carried  to  its  extreme  in  the  case  of  Smith  v.  Morrison,  5  B.  W. 
C.  C.  161  (C.  A.  Eng.  1911),  where  the  claimant  ordered  to  get  a  money  order 
at  a  particular  local  office,  finding  it  closed,  went  on  to  the  General  Post  Office 


BARNES  V.  NUNNERY  COLLIERY  CO.  6l 

back  of  his  master's  horse,  or  the  seat  of  his  master's  motor  car. 
He  was  doing  a  thing  he  was  not  employed  to  do,  and  has  no  right 
to  attempt  to  do,  namely,  to  ride  his  master's  horse  across  country 
or  to  drive  his  motor  car.  These  were  altogether  outside  the  scope 
of  his  employment.  He  exposed  himself  to  a  risk  he  was  not  em- 
ployed to  expose  himself  to — a  risk  unconnected  wnth  that  employ- 
ment, and  which  neither  of  the  parties  to  his  contract  of  service 
could  ever  be  reasonably  supposed  to  have  contemplated  as  properly 
belonging  or  incidental  to  it.  The  unfortunate  deceased  in  this  case 
lost  his  life  through  the  new  and  added  peril  to  which  by  his  own 
conduct  he  exposed  himself,  not  through  any  peril  which  his  con- 
tract of  service,  directly  or  indirectly,  involved  or  at  all  obliged  him 
to  encounter.  It  was  not,  therefore,  reasonably  incidental  to  his 
employment.  That  is  the  crucial  test.  It  has  been  many  times 
adopted.  There  was  not,  therefore,  to  my  mind  any  evidence  that 
the  injury  the  deceased  received  arose  out  of  his  employment,  and 
if  the  finding  of  the  county  court  judge  amounts  to  a  finding  that 
it  did,  it  can  not,  I  think,  be  sustained. 

Lord  Mersey.  It  is  true  that  the  learned  county  court  judge 
states,  in  the  note  of  his  judgment,  that  there  was  no  reason  to  as- 
sume that  the  boy  knew  of  the  danger  he  was  running.  This  may 
be  true  ;  but  there  is  no  evidence  one  w^ay  or  other  on  the  point.  But 
it  is  immaterial.  He  knew  that  he  was  forbidden  to  ride  in  the  tub, 
and  that,  in  my  opinion,  is  enough.  The  learned  judge  also  finds 
that  the  boy  was  not  riding  for  his  own  pleasure  but  for  the  object 
of  his  employers.  For  my  part  I  think  he  was  riding  for  his  own 
pleasure,  but  this  again  is  immaterial,  and  for  the  same  reason. 

It  is  no  doubt  true  that  one  object  which  he  had  in  view  in  get- 
ting into  the  tub  was  to  reach  his  work'  but  the  intention  existing 

<( 

and  on  the  way  was  injured,  his  injury  was  held  to  be  outside  the  course  of 
his  employment. 

Accord:  McLaren  v.  Caledonian  R.  Co.,  48  Scot.  L.  R.  885  (Ct.  Sess., 
1911),  a  railway  employe  taking  a  short  cut  home  along  the  tracks;  Hills  v. 
Blair,  148  N.  W.  243  (Mich.  1914),  seiuble ;  Hcndrv  v.  United  Collieries  Co., 
(1910)  Scot.  Sess.  Cas.  709,  3  B.  W.  C.  C.  567,  workman  injured  while  leav- 
ing pit  by  path  neither  sanctioned  nor  expressly  prohibited  but  obviously  in- 
volving considerable  danger;  Pope  v.  Hill's  Pl\mouth  Co.,  102  L.  T.  633,  5 

B.  W.  C.  C.  339  (C.  A.,  1910),  boy  attempting  to  climb  moving  trucks  to 
steal  a  ride  home,  a  practice  obviously  dangerous  but  not  specifically  for- 
bidden;  Morrison  v.  Clxde  Nav.  Trustees,  (1909)  Scot.  Sess.  Cas.  59,  2  B. 
W.  C.  C.  99,  similar  facts ;  Powell  v.  Brvnddu  Colliery,  5  B.  W.  C.  C,  124 
(C.  A.  Eng.,  1913),  but  see  Clem  v.  Chalmers  Motor  Co.,  178  Mich.  340,  144 
N.  W.  848,  where  it  was  held  that  the  death  of  a  carpenter,  working  on  the 
roof  of  a  shed,  who  in  his  hurry  to  get  some  hot  coffee,  provided  by  his 
employer,  attempted  to  slide  down  a  rope  instead  of  waiting  !iis  turn  to  de- 
scend by  a  ladder,  arose  out  of  and  in  the  course  of  his  employment. 

So  compensation  is  denied  an  employe  wlio  selects  an  unnecessarily  (b-i- 
gerous  place  to  eat  his  food,  Briee  v.  Lloyd,  L.  R.  1909,  2  K.  B.  804.  2  B.  W. 

C.  C.  26.  or  attend  to  other  wants  of  nature,  Thompson  v.  Flemington  Coal 
Co.,  48  Sc.  L.  R.  740  (Sc.  Ct.  Sess.  1911).  Rose  v.  Morrison  &  Mason,  105  L. 
T.  2  (C.  A.  Eng.,  1911).  4  B.  W.  C.  C.  277.  with  which  compare  Lawless  v. 
IVigan  Coal  &c.  Co.,  1  B.  W.  C.  C.  153  (Wigan  Co.  Ct.  1908),  or  pass  his 
period  of  idleness,  Murray  v.  Allan  Bros.,  6  B.  W.  C.  C.  215  (C,  A.  Eng., 
1913). 


62  APPENDIX. 

in  his  mind  can  not,  in  my  opinion,  convert  the  forbidden  act  into 
a  part  of  his  employment.  It  is  not  as  if  the  case  had  been  one  of 
emergency  where  the  boy  might  have  had  a  discretion  to  use  the 
perhaps  speedier,  aUhough  the  forbidden,  means  of  reaching  his 
destination.  Nor  is  it  as  if  the  rule  forbidding  the  act  was  notori- 
ously disobeyed  or  not  enforced.  It  was  disobeyed,  no  doubt,  but 
it  was  disobeyed  surreptitiously  and  unknown  to  the  employers. 
The  act  was,  in  my  view,  expressly  prohibited,  and  there  were  no 
circumstances  which  could  in  any  way  justify  the  boy  in  disregard- 
ing the  prohibition. 


M'DAID  V.  STEEL. 

Scottish  Court  of  Session,  1911.    48  Scottish  Law  Reporter,  765. 

Lord  Kinnear.  The  Sheriff-Substitute  has  in  my  opinion 
rightly  decided  the  question  put  to  us  in  the  case,  which,  however, 
as  so  often  happens,  is  a  mixed  one  of  fact  and  law ;  but  the  case  is 
so  stated  that  we  can  separate  the  questions  of  fact,  upon  which  the 
Sheriff  is  final,  and  the  question  of  law  which  may  be  properly  ap- 
pealed to  this  Court.  The  Sheriff-Substitute  in  his  finding  at  the 
end  of  the  stated  case  separates  between  fact  and  law  in  a  perfectly 
distinct  manner;  but  the  appellant's  counsel  says — and  I  think 
there  is  ground  for  saying  so — that  in  his  finding  in  fact  there 
is  also  involved  law.  He  finds  that  what  the  appellant  was  doing 
when  he  met  with  this  accident  was  outside  the  scope  of  his  employ- 
ment. He  finds  that  as  a  fact,  and  he  goes  on  to  find  in  law  that 
it  was  therefore  an  accident  which  did  not  come  within  the  definition 
of  the  statute.  But,  then,  it  is  said  that  although  he  was  not  directly 
employed  to  do  what  he  did,  it  was  still  by  legal  implication  one  of 
the  things  which  fell  within  the  scope  of  his  employment.  In  order 
to  answer  that  I  think  it  is  necessary  to  see  exactly  what  the  Sheriff- 
Substitute  says  as  to  the  facts. 

The  appellant  was  a  message  boy  employed  by  a  fishmonger  in 
Paisley,  and  it  was  part  of  the  duty  for  which  he  was  employed  to 
carry  fish  from  his  master's  shop  to  the  infirmary  at  Paisley.  It  is 
said  that  the  kitchen  of  this  infirmary  is  situated  on  the  third  story, 
and  is  reached  by  a  staircase  and  also  by  a  slow-moving  hydraulic 
hoist.  It  is  not,  so  far  as  I  can  see,  said  distinctly  that  the  boy's 
duty  was  to  deliver  fish  at  the  kitchen  and  not  merely  at  the  outer 
gate  or  door  of  the  infirmary.  But  I  think  it  may  be  fairly  inferred 
from  what  the  Sheriff  says  afterward  that  he  holds  the  former  to 
have  been  his  duty.  At  all  events  it  was  frankly  conceded  by  Mr. 
Moncrieft"  that  it  was  his  business  to  deliver  fish  at  the  kitchen  of 
the  infirmary  on  the  third  story.  Therefore  the  appellant  was  still 
in  the  course  of  his  employment  when  he  was  taking  fish  from  the 
outer  gate  to  the  kitchen. 

But  then  the  Sheriff  goes  on  to  say  that  there  were  two  ways 
in  which  he  might  reach  the  kitchen — one  the  ordinary  way  of  going 


M  DAIU  V.  STEI£L. 


63 


up  the  stairs,  and  the  other  by  using  llie  hoist,  the  gate  of  which  is 
on  the  ground  floor  and  which  is  of  simple  construction,  and  is  in- 
tended for  carrying  heavy  loads  from  that  floor  to  the  kitchen.  The 
sheriff  again  does  not  say  distinctly  that  the  hoist  was  not  intended 
to  be  used  or  was  not  generally  used  for  carrying  a  load  of  the  de- 
scription wdiich  the  message  boy  had  to  carry.  It  may  have  been,  so 
far  as  the  findings  of  the  Sherifl  are  concerned,  that  the  man  in 
charge  of  the  hoist  might  allow  or  invite  such  loads  to  be  taken  up 
by  the  hoist.  I  do  not  think  it  is  very  material  to  consider,  and  we 
can  not  determine  whether  the  fact  is  actually  so  or  not.  What  is 
distinctly  found  is  that  the  hoist  was  intended  for  carrying  heavy 
loads,  and  that  it  was  announced  by  a  public  notice  to  all  persons 
entering  the  infirmary  that  the  hoist  was  to  be  used  only  by  servants 
of  the  institution  and  worked  only  by  those  specially  authorized  by 
the  directors.  All  other  persons  were  strictly  prohibited  from  using 
or  working  the  hoist. 

Now  the  first  inference  to  be  drawn  from  that  clearly  is  that 
this  hoist  was  not  the  ordinary  means  of  access  for  message  boys 
going  to  the  kitchen.  Then  the  Sheriff  goes  on  to  say  that  it  is  not 
proved  that  the  appellant  had  ever  read  this  notice  or  had  his  inten- 
tion directed  to  it ;  but  that  he  had  been  on  several  occasions  prior 
to  the  day  of  the  accident  forbidden  to  use  and  work  the  hoist. 
Then  he  gives  a  special  instance  of  the  appellant  having  been  so 
forbidden  on  the  evening  of  the  4th  October,  the  day  previous  to 
the  accident,  when  he  had  been  found  by  the  porter  of  the  infirmary 
making  his  way  toward  the  hoist  and  had  been  recalled  and  rebuked 
by  him,  and  then  and  there  ordered  to  carry  his  fish  to  the  kitchen 
by  way  of  the  stairs,  which  he  did.  Thig  being  the  arrangement  at 
the  infirmary,  it  is  said  that  when  the  boy  arrived  at  the  infirmary 
on  this  particular  occasion  he  found  the  gate  of  the  hoist  standing 
open,  that  he  then  entered  the  hoist  and  pulled  the  rope  for  himself 
and  caused  it  to  ascend,  and  that  in  the  course  of  its  ascent,  he  him- 
self having  thus  put  it  in  motion,  and  while  it  was  still  in  motion, 
his  foot  got  jammed  between  the  floor  of  the  hoist  and  the  wall. 

The  Sheriff  says  that  in  doing  this  the  appellant  knew  that  he 
was  doing  wrong,  and  that  immediately  after  the  accident  and  before 
being  removed  from  the  hoist  he  voluntarily  confessed  that  he  had 
been  forbidden  to  use  the  hoist.  On  these  facts  the  Sheriff  docs  not 
go  on  to  find  that  the  boy  was  guilty  of  serious  and  wilful  miscon- 
duct. As  he  has  not  so  found,  it  is  not  for  us  to  consider  whether 
that  would  have  been  a  correct  finding  or  not  in  the  circumstances 
of  this  case.  But  I  think  the  learned  Sheriff  was  perfectly  right  in 
giving  no  judgment  upon  that  point,  because  the  primary  c|ucstion 
is  the  one  which  iie  decides,  viz.,  whether  the  boy  met  with  this  ac- 
cident in  the  course  of  his  employment  or  not.  Now  he  says  that 
the  appellant  was  not  in  fact  within  the  scope  of  his  employment 
when  he  was  doing  this  thing.  If  this  is  a  mere  question  of  fact, 
the  Sheriff's  finding  is  conclusive  and  we  can  not  disturb  it. 

But  I  am  not  at  all  disposed  to  dissent  from  '\\v.  Watt's  view 
that  this  question  may  involve  a  question  of  law — of  legal  implica- 


64  APPENDIX. 

tion — as  to  what  the  employment  of  the  boy  really  was.  He  was 
employed  to  carry  fish  from  the  fishmonger's  shop,  and  to  use  the 
public  streets,  and  also  the  ordinary  means  of  access  which  it  was 
necessary  for  him  to  use,  in  order  to  reach  the  place  of  delivery ; 
and  therefore  it  may  be  that  the  risks  of  accident  incident  to  the 
ordinary  means  of  access  to  the  infirmary  kitchen  were  risks  inci- 
dent to  his  employment.  But  I  think  it  necessarily  follows  from  the 
description  of  his  employment  that  if  he  chose  to  enter  an  open  hoist 
which  he  knew  he  was  not  entitled  to  enter,  and  took  upon  himself 
to  work  the  lift,  exposing  himself  to  risks  arising  from  his  own  con- 
duct of  machinery  which  it  was  not  his  business  to  operate,  he 
thereby  exposed  himself  to  new  risks  which  were  not  within  the 
contract  of  employment  which  he  made  with  his  master.  It  was  not 
an  accident  connected  with  his  employment  in  any  way.  He  was 
not  employed  to  work  a  lift.  Upon  that  simple  ground  I  think  the 
judgment  of  the  Sheriff  is  right  in  fact  that  he  was  not  employed  to 
do  what  he  did,  but  voluntarily  exposed  himself  to  risks  which  he 
was  net  invited  nor  authorized  to  incur,  it  follows,  in  my  opinion, 
that  the  accident  that  happened  to  him  did  not  arise  out  of  and  in 
the  course  of  his  employment.  It  arose  out  of  an  adventure  which 
he  chose  to  undertake  for  his  own  pleasure  and  in  the  course  of  his 
doing  what  he  was  not  employed  to  do.  I  am  therefore  of  opinion 
that  the  judgment  of  the  Sheriff  is  right,  and  that  we  must  answer 
the  question  of  law  in  the  affirmative.  That  is  my  opinion,  and  I 
must  say  that  I  have  come  to  it  without  any  hesitation. 

I  only  desire  to  add  that  I  am  not  prepared  to  assent  entirely 
to  all  the  findings  which  are  contained  in  the  general  findings  with 
which  the  learned  Sheriff  concludes  his  statement.  I  think  he  has 
combined  a  variety  of  different  reasons  of  different  degrees  of 
cogency  that  bear  more  or  less  directly  upon  the  point  in  issue, 
whereas  the  true  ground  of  judgment,  I  think,  is  that  the  appellant 
was  doing  something  he  was  not  employed  to  do,  and  thereby  in- 
curred danger  which  would  not  have  been  incurred  in  the  work  in 
which  he  was  employed. 

The  Court  answered  the  question  of  law  in  the  afifiirmative.^ 

'In  Wemyss  Coal  Co.  v.  Symon,  49  Sc.  L.  R.  921  (Sc.  Ct.  Sess.  1912),  6 
B.  W.  C.  C.  298,  tlie  employe,  a  boj',  who  was  sent  on  an  errand,  the  employer 
supplying  tramway  fares,  was  injured  in  attempting  to  board  a  moving  car, 
a  practise  not  only  dangerous  but  forbidden  by  the  rules  of  the  Tramway  Co. 
The  Court  of  Session  reversed  a  finding  of  the  sheriff-substitute  in  favor  of 
the  complainant,  on  the  ground  that  in  attempting  to  jump  on  the  moving 
car,  the  boy  "was  wilfully  taking  an  outside  risk  not  incident  to  the  rea- 
sonable requirements  of  duty,"  and  see  accord:  Jibb  v.  Chadwick,  50  L.  Jour- 
nal 79  (C.  A.  Eng.  1915). 

In  Revie  v.  Cumming,  1911  Sess.  Cases  1C32  (Sc.  Ct.  Sess.  1911).  5  B. 
W.  C.  C.  483,  a  carter  employed  to  look  after  the  rear  brakes  of  a  "lorry" 
drawn  by  five  horses,  instead  of  walking  by  it  as  he  should,  seated  himself 
on  the  front  of  the  lorry,  being  called  on  to  apply  the  brakes  he  jumped  off 
the  lorry  and  slipped  and  was  run  over.  It  was  held  that  the  injury,  though 
received  "in  the  course  of  his  employment"  did  not  arise  out  of  it,  being  due 
to  a  risk  not  incidental  to  the  employment  but  added  to  it  by  the  claimant 
for  purposes  of  his  own;  see  accord:  Herbert  v.  Fox,  59  Solicitor's  Journal 
249  (C.  A.  Eng.  1915). 


i 


CLIFI-OI^  V.  JOY.  65 

CLIFFORD  V.  JOY. 
Court  of  Appeal,  Ireland,  1909.    43  Ir.  L.  T.  193. 

A  domestic  servant  who  was  outside  the  door  of  her  employer's 
house  drying  her  hair  returned,  in  response  to  an  order,  to  the  house 
to  take  charge  of  a  baby  in  a  cradle  within  a  couple  of  feet  of  the 
fire.  She  continued  the  operation  of  drying  her  hair ;  her  sleeve  was 
loose  and  caught  fire,  and  from  the  injuries  received  she  died.  No 
one  witnessed  the  occurrence,  but,  according  to  a  statement  made 
by  the  girl  herself  after  the  happening  of  the  accident,  her  clothes 
caught  fire  whilst  she  was  drying  her  hair. 

Appeal  by  the  employer  from  an  award  of  A.  Todd,  K.  C, 
Acting  County  Covirt  Judge  of  Kerry. 

Sir  Samuel  Walker,  Bart.,  L.  C.  On  the  facts  stated  there  is 
not  the  smallest  doubt  that  this  poor  girl  had  washed  her  hair  and 
was  drying  it  outside  the  house,  when  she  was  told  to  come  in  and 
take  charge  of  the  baby.  She  came  in  and  proceeded  to  dry  her 
hair  at  the  fire,  and  to  do  that  I  have  no  doubt  that  she  sat  at  the 
inside  instead  of  the  outside  of  the  cradle.  Her  own  statement 
was : — "Her  sleeve  was  loose ;  she  caught  fire  while  she  was  drying 
her  hair."  That  is  an  obvious  statement  of  the  facts  w'hich  can  not 
be  gainsaid,  and  we  can  not  send  down  the  case  to  have  that  state- 
ment contradicted.  It  is  not  enough  that  an  accident  arises  in  the 
course  of  the  employment ;  it  must  arise  also  out  of  and  as  an  inci- 
dent of  the  employment.  Nobody  can  fail  to  see  that  but  for  the 
drying  of  the  hair  and  the  loose  sleeve  tl'ys  accident  would  not  have 
happened.  It  arose  from  the  drying  of  the  hair,  which  was  no  part 
of  the  employment.  ' 

FiTZGiBBON,  L.  J.  The  real  question  is  whether  the  blouse  took 
fire  because  the  girl  was  drying  her  hair  near  the  fire.  If  we  came 
to  the  conclusion  that  she  was  engaged  at  two  operations — one  in 
charge  of  the  child,  and  the  other  drying  her  hair — the  question  is, 
which  of  the  two  brought  her  within  reach  of  the  fire  and  set  her 
clothes  on  fire.  She  would  not  have  been  in  the  place  in  which  she 
took  fire  by  reason  of  being  in  charge  of  the  baby,  and  there  is  ample 
proof  that  the  accident  wholly  arose  out  of  the  operation  of  being 
engaged  in  drying  her  hair.  The  risk  of  taking  fire  while  engaged 
in  drying  her  hair  w^as  not  one  within  the  scope  of  her  employment. 

Holmes,  L.  J.,  concurred. 

Appeal  allowed. 


WARNER  V.  COUCHMAN. 

Court  of  Appeal,  England,  1910.    L.  R.  1911,  1  King's  Bench  Div.  351. 

Appeal  against  the  refusal  of  the  judge  of  the  Tentcrdcn 
County  Court  to  aw-ard  compensation  to  an  applicant  under  the 
Workmen's  Compensation  Act,  1906. 


66  APPENDIX. 

The  question  raised  by  this  appeal  was  whether  a  journeyman 
baker  whose  right  hand  and  arm  had  been  injured  by  a  frost-bite 
while  out  on  his  rounds  with  his  employer's  cart  could  obtain  com- 
pensation for  that  injury  as  "an  accident  arising  out  of"  his  em- 
ployment. 

On  December  8,  1909,  which  was  a  very  cold  day  with  rain  and 
sleet  at  intervals,  the  applicant's  right  hand  became  very  cold  and 
began  to  ache ;  the  following  day  his  hand  and  arm  began  to  swell, 
and  eventually  he  became  unable  to  work,  and  applied  for  compensa- 
tion under  the  Workmen's  Compensation  Act,  1906.  The  county 
court  judge,  who  was  assisted  by  a  medical  referee,  found  as  a  fact 
that  the  injury  to  the  applicant's  hand  was  caused  by  something  in 
the  nature  of  a  frost-bite  sustained  by  him  while  delivering  bread  on 
December  8,  but  added  that  there  was  nothing  in  the  nature  of  the 
applicant's  employment  which  exposed  him  to  more  than  the  ordinary 
risk  of  cold  to  which  any  person  working  in  the  open  was  exposed 
on  that  day.  With  reference  to  one  fact  which  was  particularly 
relied  on,  namely,  that  the  applicant  had  frequently  to  take  off  his 
right-hand  glove  in  order  to  give  change,  the  county  court  judge 
held  that  this,  though  probably  convenient,  was  not  necessary.  For 
these  reasons  the  county  court  judge  refused  to  award  compensa- 
tion, though  he  settled  the  amount  payable  in  the  event  of  his  de- 
cision being  reversed.  The  applicant  appealed.  The  appeal  was 
heard  on  November  14,  1910. 

Cozens-Hardy,  M.  R.  This  is  an  appeal  by  a  workman  whose 
claim  to  compensation  has  been  disallowed  by  the  county  court 
judge. 

The  facts  are  simple  and  not  really  in  dispute.  (Having  stated 
the  facts,  his  Lordship  continued  : — ) 

In  order  to  maintain  his  claim  it  is  necessary  for  the  applicant 
to  prove  that  there  was  a  personal  injury  by  "accident"  arising  "out 
of"  and  in  the  course  of  the  employment.  That  the  injury  was  re- 
ceived in  the  course  of  the  employment  is  clear,  but  it  is  contended 
that  there  was  no  accident,  and  that  the  injury  did  not  arise  out  of 
the  employment.  I  feel  considerable  doubt  whether  there  was  an 
accident  within  the  meaning  attributed  to  that  word  by  this  Court 
and  by  the  House  of  Lords.  But  I  assume  this  point  in  favor  of 
the  applicant. 

It  remains  to  consider  the  words  "out  of."  If  I  may  venture 
to  quote  my  own  words  in  Craske  v.  IVigan,  (1909)  2  K.  B.  631,  at 
p.  635,  where  a  cock-chafer  frightened  a  lady's  maid  sitting  at  an 
open  window,  with  the  result  that  her  eye  was  injured,  "it  is  not 
enough  for  the  applicant  to  say  'the  accident  would  not  have  hap- 
pened if  I  had  not  been  engaged  in  that  employment  or  if  I  had 
not  been  in  that  particular  place.'  He  must  go  further  and  must 
say  'the  accident  arose  because  of  something  I  was  doing  in  the 
course  of  my  employment  or  because  I  was  exposed  by  the  nature 
of  my  employment  to  some  peculiar  danger.'  "  Can  that  be  said  in 
the  present  case?  I  am  unable  to  see  that  there  was  any  peculiar 
danger  to  which  the  applicant  was  exposed,  beyond  that  to  whigh 


WARNER  V.    COUCllMAX.  6"^ 

that  large  section  of  population  who  arc  drivers  of  vehicles,  or  who 
are  otherwise  engaged  as  out-of-door  lahorers,  are  exposed. 

The  case  of  Andrew  v.  Failszcorth  Industrial  Society,  Ltd., 
(1904)  2  K.  B.  ^2,  upon  which  the  applicant  mainly  relied,  has,  1 
think,  been  somewhat  misunderstood.  In  that  case  it  was  found  as  a 
fact  by  the  county  court  judge  that  the  man,  who  was  working  on  a 
scaffold  at  a  considerable  height,  was  exposed  to  more  than  the 
normal  risk  of  being  struck  by  lightning,  and  Lord  Collins,  then 
Master  of  the  Rolls,  said,  at  p.  35:  "If  there  is  under  particular 
circumstances  in  a  particular  vocation  something  appreciably  and 
substantially  beyond  the  ordinary  normal  risk,  which  ordinary  peo- 
ple run,  and  which  is  a  necessary  concomitant  of  the  occupation  the 
man  is  engaged  in,  then  I  am  entitled  to  say  that  the  extra  danger 
to  which  the  man  is  exposed  is  something  arising  out  of  his  em- 
ployment." And  this  Court  declined  to  interfere  with  the  award. 
On  the  other  hand,  the  Court  of  Appeal  in  Ireland  in  Kelly  v.  Kerry 
County  Council,  42  I.  L.  T.  23,  held  that  a  workman  employed  in  a 
road  who  was  killed  by  lightning  was  not  entitled  to  compensation, 
on  the  ground  that  the  accident  did  not  arise  out  of  his  employment.^ 

In  the  present  case  the  county  court  judge  says  that  there  was 
nothing  in  the  nature  of  the  applicant's  employment  which  exposed 
him  to  more  than  the  ordinary  risk  of  cold  to  which  any  person 
working  in  the  open  was  exposed  on  that  day.  He  adds  that  one 
fact  only  was  relied  on,  namely,  that  he  had  to  take  off  his  right- 
hand  glove  in  order  to  give  change,  and  that  this,  though  probably 
convenient,  was  not  necessary.  In  the  face  of  this  finding  of  fact, 
with  which  we  can  not  interfere,  and  which,  so  far  as  I  can  gather 
from  the  evidence,  was  perfectly  correct,  I  think  it  is  impossible 
for  us  to  reverse  the  decision  of  the  learned  county  court  judge.  In 
my  opinion  the  appeal  fdils  and  should  be  dismissed  with  costs. 

Fletcher  Moulton,  L.  J.  There  remains  the  question 
whether  this  accident  arose  out  of  the  employment.  I  am  obliged 
to  confess,  and  I  do  it  with  all  humility,  that  I  can  not  see  that  this 
admits  of  doubt.  The  man's  employment  recjuired  him  to  go  his 
rounds  on  this  bitterly  cold  day  and  deliver  the  bread  to  the  custom- 
ers and  to  do  all  the  acts  necessary  thereto.  This  involved  exposure 
of  the  right  hand,  and  it  was  this  exposure  which  brought  on  the 
frost-bite.  The  severity  of  the  cold  to  \vhich  he  was  thus  com- 
pelled by  his  employment  to  expose  himself  is  shown  by  the  nature 
of  the  injury,  inasmuch  as  such  injuries  from  cold  are  rare  in  this 
country,  though  common  enough  in  northern  or  Continental  climates, 
and  it  is  obvious  but  for  the  requirements  of  his  employment  he 
could  have  protected  himself  from  such  severe  cold  either  by  not 
going  out  on  rounds  such  as  he  was  required  to  make  or  by  properly 
protecting  his  hand  from  the  cold.     The  direct  connection  between 


^  See  accord:  Lindaucr  Co.  v.  Hoening,  Report  of  Wisconsin  Industrial 
Commission,  July  20,  1914,  p.  79,  compensation  denied  to  dependents  of  a 
workman  struck  by  lightning  while  working  on  a  dam  in  a  river,  "the 
hazard  from  lightning  of  working  near  water"  being  no  different  from  tliat 
of  "ordinary  out-door  work." 


68  APPEXDIX. 

the  exposure  necessitated  by  his  employment  and  the  injury  is  fur- 
ther shown  by  the  fact  that  it  was  only  the  hand  so  exposed  that 
suffered.  I  confess  that  I  can  not  picture  to  myself  a  more  typical 
case  of  an  accident  arising  "out  of"  the  employment. 

The  judgment  of  the  learned  judge  of  the  county  court  shows 
that  he  thought  himself  permitted  and  even  bound  to  compare  the 
man's  employment  with  other  employments  in  order  to  ascertain 
whether  the  accident  arose  out  of  the  applicant's  employment.  To 
my  mind  this  is  falsa  dciiionstratio.  The  law  does  not  say  "arising 
out  of  his  employment,  and  out  of  that  employment  only."  Other 
employments  have  nothing  whatever  to  do  with  the  question.  A 
shepherd  who  has  to  bring  in  his  sheep  in  a  snowstorm  and  suffers 
frost-bite  or  loses  his  life  thereby  is  the  victim  of  an  accident  arising 
out  of  his  employment  none  the  less  because  a  railway  guard  or  a 
night  watchman  or  a  postillion  be  equally  exposed  to  the  weather. 
The  comparison  of  one  employment  with  another  is  to  my  mind 
wholly  illegitimate. 

It  is  true  that  w'hen  we  deal  with  the  eft'ect  of  natural  causes 
affecting  a  considerable  area,  such  as  severe  weather,  we  are  entitled 
and  bound  to  consider  whether  the  accident  arose  out  of  the  employ- 
ment or  was  merely  a  consequence  of  the  severity  of  the  weather  to 
which  persons  in  the  locality,  and  whether  so  employed  or  not,  were 
equally  liable.  If  it  is  the  latter  it  does  not  arise  "out  of  the  em- 
ployment," because  the  man  is  not  specially  affected  by  the  severity 
of  the  weather  by  reason  of  his  employment. 

The  true  issue  could  not  be  better  expressed  than  it  was  by  the 
Irish  Court  of  Appeal  in  Kelly  v.  Kerry  County  Couneil,  42  I.  L.  T. 
23,  when  dealing  with  the  question  of  the  death  by  lightning  of  a 
man  working  on  the  roads.  They  found  that  the  accident  did  not 
arise  out  of  his  employment  because  there  was  no  evidence  that  in 
following  his  employment  he  ran  any  greater  risk  of  being  struck 
by  lightning  than  any  other  person  zvho  zvas  zvithin  the  area  of  the 
storm.  This  was  a  sound  view  by  reason  of  the  fact  that  lightning 
is  indiscriminate  in  its  action,  and  persons  at  home  or  abroad,  at 
work  or  unemployed,  run  substantially  equal  dangers.  But  when 
a  case  arose  of  a  man  who  by  reason  of  his  employment  was  ex- 
posed to  the  danger  of  lightning  to  a  greater  degree  than  other  per- 
sons within  t!:e  area  of  the  storm,  this  Court  in  Andrezu  v.  Fails- 
zvorth  Industrial  Society,  Ltd.,  ( 1904)  2  K.  B.  32,  held  that  the  ac- 
cident arose  out  of  the  employment.  It  would  have  puzzled  any 
scientific  man  to  say  by  how  much  the  risk  was  increased,  or  \yhether 
a  woodman  or  a  worker  on  electric  lines  or  many  other  kinds  of 
workmen  did  not  run  an  equal  risk,  but  the  Court  rightly  abstained 
from  considering  such  questions.  The  case  of  extreme  heat  or  ex- 
treme cold  is  similar  to  that  of  such  a  natural  agency  as  lighting, 
excepting  that  it  is  easier,  as  in  this  case,  to  show  the  direct  con- 
nection between  the  accident  and  the  employment.  But  the  rule  is 
the  same.  If  the  employment  brings  with  it  greater  exposure  and 
injury  results,  that  injury  arises  out  of  the  employment. 

For  these  reasons  I  am  of  opinion  that  the  appeal  should  be 


WARNER  f.    COUCHMAN.  69 

allowed  with  costs  here  and  in  the  Court  below.  It  would  not  be 
necessary  to  send  the  case  back,  inasmuch  as  the  learned  judge  has 
made  a  finding  as  to  the  amount  of  compensation  if  the  applicant  be 
entitled  to  it,  as  in  my  opinion  he  is. 

Farwell,  L.  J.  I  agree  with  the  judgment  of  the  Master  of 
the  Rolls,  and  not  with  that  of  Fletcher  Moulton,  L.  J.  I  am  of 
opinion  that  the  county  court  judge  was  right. 

I  assume,  as  he  did,  without  expressing  any  opinion  on  the 
point,  that  the  frost-bite  was  an  accident,  and  I  agree  with  him  that 
although  it  occurred  "in  the  course  of"  it  did  not  "arise  out  of"  the 
employment. 

I  take  the  test  as  stated  by  Lord  Collins  in  Andrew  v.  Fails- 
u'orth  Industrial  Society,  Ltd.,  (1904)  2  K.  B.  32,  at  p.  35:  "Was 
the  man  exposed  to  something  more  than  the  normal  risk,  which 
everybody,  so  to  speak,  incurs  at  any  time  and  in  any  place"  when 
driving  in  an  open  trap  on  a  very  cold  day  with  rain  and  sleet  at 
intervals?  I  can  see  none.  The  squire  in  his  dogcart,  the  farmer 
in  his  gig,  the  butcher,  the  grocer,  the  traveller,  and  the  carter  in 
their  carts,  were  all  in  just  the  same  position  of  exposure. 

Appeal  dismissed. - 


=  It  was  held  in  Karemaker  v.  5.  S.  "Corsican,"  4  B.  W.  C.  C.  295  (C.  A. 
1911),  that  the  risk  of  having  his  hands  frost-bitten  was  not  incidental  to 
the  work  of  a  sailor  in  Hahfax,  N.  S.,  where  every  one  who  goes  out  in  win- 
ter weather  runs  a  risk  of  injury  by  the  cold,  and  in  Robson,  Eckford  &  Co. 
V.  Blakcy,  1912  Sess.  Cases  334,  5  B.  W.  C.  C.  536,  a  plumber  stricken  by  heat 
apoplexy  while  laying  pipes  in  a  trench  in  a  road  during  excessive  summer 
heat  was  held  not  entitled  to  compensation.  Compare  with  these  the  cases  of 
Morgan  v.  5".  5.  Zenaida,  25  T.  L.  R.  446,  2  B.^W.  C.  C.  19  (C.  A.  1909),  and 
Davics  v.  Gillespie,  105  L.  T.  494  (C.  A.  1911),  5  B.  W.  C.  C.  64,  where  the 
risk  of  being  sun-struck  w^s  held  incidental  to  the  employment  of  one  paint- 
ing a  ship  in  a  dry-dock  in  a  tropical  port,  and  Fcnslcr  v.  Associated  Sttppl]' 
Co.,  Decisions  of  Ind.  Ace.  Com.  of  California,  Vol.  1,  No.  21,  p.  41   (1914). 

So  in  Craske  v.  Wigan,  L.  R.  1909.  2  K.  B.  635,  2  B.  W.  C.  C.  35,  it  was 
held  that  to  make  the  "character  and  quality  of  the  risk  depend  on  the  number 
in  an  effort  to  ward  off  a  cock-chafer  which  flew  througli  an  open  window  by 
which  slie  was  working,  did  not  arise  out  of  her  employment,  and  in  Amys 
V.  Barton,  L  R.  1912,  1  K.  B.  40,  5  B.  W.  C.  C.  117,  where  it  was  held  that 
the  death'of  a  farm  laborer  from  blood  poisoning  resulting  from  bemg  stung 
by  wasps  which  attacked  him  while  at  work,  did  not  arise  out  of  his  employ- 
ment, with  which  compare  Ro7v!and  v.  ll'riglit,  L.  R.  1909,  1  K.  B.  963  1 
B  W.  C.  C.  192,  where  a  stableman  bitten  by  a  stalile  cat  was  held  entitled 
to  compensation,  the  difference  being  that  a  cat,  unlike  wasps,  though  likely 
to  be  met  with  in  other  places  than  staliles,  are  "part  of  the  necessary  furni- 
ture of  a  stable"  and  maintained  by  and  with  the  knowledge  and  consent  of 

the  owner.  r,^   nt,    r  r>   i\t   /^   r^ 

See  also.  Butler  v.  Btirton-on-Trcnt  Union,  106  L.  T.  824,  5  B.  W.  L.  L. 
355  (C.  A.  Eng.  1912),  where  the  widow  of  a  workhouse  master,  who,  while 
sitting  on  the  top  of  some  steps  leading  to  his  room,  fell  down  them  in  a  fit 
of  coughing,  was  deemed  compensal)le.  and  Peel  v.  Lazvrence  &  Co..  28  1. 
L.  R.  318.  '5  B.  W.  C.  C.  274  (C.  A.  Eng.,  1912),  wliere  compensation  was 
denied  to  a  workman  who  sprained  the  tendon  of  a  finger  while  removing  his 
socks  on  arriving  at  his  place  of  work,  which  required  him  to  go  bare-foot. 


70  APPENDIX. 


PIERCE  V.  PROVIDENT  CLOTHING  AND  SUPPLY 

CO.,  LTD. 

Court  of  Appeal,  England,  1911.    L.  R.  1911,  1  A".  B.  997. 

Appeal  from  an  award  of  the  judge  of  the  Birkenhead  County 
Court  sitting  as  arbitrator  under  the  Workmen's  Compensation  Act, 
1906. 

The  apphcant  was  the  widow  of  a  man  who  was  employed  by 
the  respondent  company  as  canvasser  and  collector  in  the  Birken- 
head district.  The  district  allotted  to  him  was  triangular  in  shape, 
each  side  of  the  triangle  measuring  about  two  miles.  On  September 
30,  1910,  while  going  his  rounds  on  a  bicycle,  he  was  knocked  down 
by  an  electric  car  and  killed.  The  facts  found  by  the  county  court 
judge  were  as  follows :  For  some  nine  months  before  the  accident 
the  deceased  had  been  in  the  habit  (like  many  others  similarly  em- 
ployed) of  riding  a  bicycle  for  the  purpose  of  going  from  place  to 
place  in  the  course  of  his  work,  and  this  was  known  to  and  not  for- 
bidden by  his  employers.  It  was  no  part  of  his  duty,  however,  to 
ride  a  bicycle  for  this  purpose.  Although  permitted,  it  was  neither 
required  nor  desired  nor  encouraged  by  his  employers.  They  re- 
ceived no  benefit  from  it,  and,  as  far  as  their  interests  were  con- 
cerned, the  work  could  have  been  done  just  as  well,  if  not  better, 
on  foot. 

From  these  facts  the  learned  county  court  judge  drew  the  con- 
clusion that  the  risk  of  a  bicycle  accident  was  not  one  which  was 
incident  to  the  business  in  which  the  deceased  was  engaged,  and  he 
held  that  the  accident  did  not  arise  out  of  his  employment  though 
it  undoubtedly  arose  in  the  course  of  it.  He  accordingly  made  an 
award  in  favor  of  the  respondent  company. 

The  applicant  appealed. 

Cozens-Hardy,  M.  R.  Notwithstanding  the  able  arguments 
addressed  to  us  on  behalf  of  the  respondents  I  think  it  clear  that 
the  learned  county  court  judge  has  misdirected  himself  in  point  of 
law.  (The  Master  of  the  Rolls  read  the  findings  of  the  learned 
county  court  judge,  and  continued.)  Thus  we  have  it  that  without 
any  prohibition  from  his  employers  he  did  his  work  by  going  on  his 
bicycle  on  his  rounds.  This  work  of  course  necessarily  involved 
spending  a  great  part  of  the  day  in  the  streets  in  this  triangular 
area ;  and  in  the  course  of  his  duties  he  was  beyond  all  doubt  much 
more  exposed  to  the  risks  of  the  streets  than  ordinary  members  of 
the  public.  Two  points  have  been  raised  by  counsel  for  the  re- 
spondents. He  says,  first,  that  the  risk  of  the  streets  is  a  risk  to 
which  everybody  is  subject,  and  that  this  man  who  was  knocked 
down  and  killed  by  an  electric  car  was  not  more  exposed  than  any 
other  member  of  the  public ;  and  secondly  that,  although  the  acci- 
dent arose  in  the  course  of,  it  did  not  arise  out  of,  his  employment. 
1  will  deal  first  with  the  point  as  to  risk.  Is  that  sound  in  law?  I 
think  not.    Andrew  v.  Failszvorth  Industrial  Society,  Ltd.,  (1904) 


PIERCE  V.    PROVIDENT   CLOTHING   &   SUPPLY   CO.  "Jl 

2  K.  B.  32,  (the  lightning  case)  is  one  leading  authority  on  that 
point.  There  the  county  court  judge  found  as  a  fact  that  the  man 
was  working  on  a  scaffold  at  a  considerable  height  and  was  more 
exposed  to  risk  than  other  people.  Collins  M.  R.  said:  "If  there  is 
under  particular  circumstances  in  a  particular  vocation  something 
appreciably  and  substantially  beyond  the  normal  risk,  which  ordi- 
nary people  run,  and  which  is  a  necessary  concomitant  of  the  occu- 
pation the  man  is  engaged  in,  then  I  am  entitled  to  say  that  the  extra 
danger  to  which  the  man  is  exposed  is  something  arising  out  of  his 
employment." 

Side  by  side  with  that  we  find  the  case  in  the  Irish  Court  of 
Appeal  of  Kelly  v.  Kerry  County  Council,  42  I.  L.  T.  23 ;  i  B.  W. 
C.  C.  94,  where  a  man  was  working  on  the  high  road  and  was  struck 
by  lightning.     He  was  exactly  in  the  same  position  as  the  whole  of 
the  agricultural  population  of  the  whole  of  the  county,  and  therefore 
it  was  a  case  in  which  the  accident  could  not  be  said  to  arise  out  of 
and  in  the  course  of  his  employment.    Then  came  Warner  v.  Couch- 
man,  (1911)  I  K.  B.  351,  in  which  there  was  a  difference  of  opinion 
between  the  members  of  this  Court.     But  I  think  there  was  no  dif- 
ference of  opinion  as  to  the  principle  applicable  to  cases  of  this 
kind.     There  was  a  difference  as  to  whether  the  facts  of  that  par- 
ticular case  Drought  it  within  or  just  outside  that  particular  prin- 
ciple.   The  majority  of  the  Court  thought  that  the  risk  from  frost- 
bite, which  was  the  injury  in  question,  was  one  to  which  the  whole 
agricultural  population  of  England  is  subject,  and  that  there  was 
therefore  nothing  to  bring  that  case  within  the  rule  that  this  was 
an  accident  arising  out  of  and  in  the  course  of  his  employment. 
Fletcher  Moulton,  L.  J.  thought  that  the  man  was  more  exposed 
than  the  rest  of  the  agricultural  population,  but  I  do  not  think  that 
there  was  any  differende  whatever  in  principle  between  any  of  the 
members  of   the   Court   in  that   case.     Then   comes   the  case   of 
McNeice  v.  Sinaer  Sewing  Machine  Co.,  Ltd.,  1911  S.  C.  12,  in  the 
Court  of  Session.    Upon  "the  first  point  of  the  argument  which  has 
been  addressed  to  us  the  judgment  of  the  Lord  President  is  a  direct 
authority— an  authority  which  I  agree  is  not  binding  upon  us,  but 
an  authority  which  Icordially  accept  because  I  entirely  approve  of 
the  reasoning  upon  which  it  is  based.     There  the  man  was  a  sales- 
man and  collector.     Here  the  man  is  not  a  salesman  exactly :  he  is 
a  canvasser  and  collector ;  but  it  is  impossible  to  draw  any  distinc- 
tion between  those  two  employments.     He  was  riding  a  bicycle  in 
the  course  of  his  employment  and  was  kicked  by  a  horse.     The 
sheriff-substitute  held  that  the  .iccident  did   not  arise  out  of  the 
employment.     The  Court  of  Session  held  that  it  did.  and  the  Lord 
President  says  this :    "The  only  (luestion  to  be  determined  that  hi'^ 
been  argued  before  us  is  whether  'the  accident'  arose  out  of  the 
employment.     Now  I  think  it  did.     I  think  that  it  was  one  of  \h^ 
ordinary  dangers  to  which  his  employment  exposed  him.  because  it 
is  quite' clear  from  the  statements  before  us  that  his  employment  as 


72  APPENDIX. 

collector  forced  him  to  traverse  the  streets/  And  I  think,  therefore, 
that  a  danger,  which  is  an  ordinary  danger  of  the  street — and  I  think 
we  are  entitled  of  our  own  knowledge  to  know  that  the  behavior 
of  a  passing  horse  is  one  of  the  ordinary  dangers  of  the  street — is 
therefore  a  danger  arising  out  of  his  employment."  I  respectfully 
desire  to  adopt  that  decision  and  follow  it  in  the  present  case  upon 
the  first  point  that  was  argued,  namely,  that  this  accident,  due  to  a 
man  riding  a  bicycle  in  the  course  of  his  employment,  does  not  give 
him  a  right  to  claim  against  the  company  because  any  one  else  in 
the  streets  is  exposed  to  the  same  risk.  I  think  that  this  man  was 
more  exposed  than  other  people.  His  employment  exposed  him  to 
the  risks  of  the  streets  practically  all  day  long,  allowing  only  for 
the  intervals  of  going  inside  the  houses  of  the  people  he  was  visit- 
ing. But  then  it  is  said  that  in  the  Scotch  case  the  man  was  directed 
to  go  on  a  bicycle.  I  can  see  nothing  in  that  point.  If  I  tell  a  man 
to  go  an  errand  I  do  not  direct  him  to  walk.  If  I  know  that  he  uses 
any  particular  mode  of  locomotion  and  do  not  prohibit  it,  it  seems 
to  me  unimportant  whether  I  direct  him  to  use  that  particular  mode 
or  whelher  I  permit  him.  Here  on  the  findings  of  the  county  court 
judge,  the  use  of  the  bicycle  was  known  to  and  not  forbidden  by  the 
employers :  it  was  therefore  permitted.  The  accident  happened  in 
the  street  under  the  circumstances  I  have  mentioned.  I  think  there 
is  nothing  in  the  point  that  this  permitted  mode  of  going  from  place 
to  place  might  possibly  be  more  risky  than  going  on  foot.  For 
these  reasons  I  think  that  the  learned  county  court  judge  has  mis- 
directed himself  and  that  this  appeal  must  be  allowed. 

Fletcher  Moulton,  L.  J.  I  am  of  the  same  opinion.  I  think 
that  this  case  is  concluded  by  the  finding  of  the  learned  county  court 
judge  that  this  was  a  permitted  mode  of  locomotion.  It  was  known 
to  and  not  forbidden  by  his  employers ;  it  was  permitted  although 
it  was  not  directed.  That  being  so,  we  can  draw  no  distinction  be- 
tween that  and  any  other  permitted  mode  of  locomotion.  A  man 
who  in  the  course  of  his  employment  has  to  get  about  the  streets 
may  do  so  on  foot  or  in  a  tramcar  or  in  a  carriage  or  motor  car  or 
on  a  bicycle.  Each  of  them  has  its  own  risks  and  each  is  free  from 
some  of  the  risks  which  afifect  the  others.  We  have  not  to  balance 
these  risks  one  against  the  other.     So  soon  as  it  is  clear  that  this 


^  The  Lord  President  (Dnnedin)  laid  no  stress  on  the  fact  that  the 
plaintiff's  employment,  as  salesman  and  collector,  required  him  to  be  con- 
stantly on  the  street.  "It  is  true,"  he  said  "that  many  members  of  the  public 
are  exposed  to  the  same  danger  but  this  does  not  seem  to  me  to  be  the  cri- 
terion ;"  and  in  Refuge  Assurance  Co.  v.  Millar,  49  Sc.  L,  R.  67  (Sc.  Ct.  Sess. 
1911),  5  B.  W.  C.  C.  522,  the  same  judge  held  that  an  insurance  agent,  who, 
while  collecting  premiums,  slipped  and  fell  on  the  stairs  of  a  lodging-house, 
in  which  he  thought  that  one  of  the  persons  owing  premiums  resided,  could 
recover  compensation,  though  the  person  had  in  fact  removed  from  the 
lodgings  and  though  there  was  no  evidence  that  the  particular  stair  was 
abnormal  or  defective.  See  also,  Bctt  v.  Hughes,  note  to  Greene  v.  Shaw, 
post,  p.  75. 


PIERCE  V.    PROMDENT   CLOTlllXG   &    SUPPLY   CO.  J^ 

mode  of  locomotion  is  permitted  by  the  master  the  workman   in 
adopting  it  is  acting  within  the  scope  of  his  employment. - 

Buckley,  L.  J.  The  question  whether  the  accident  is  the  re- 
sult of  a  risk  to  which  all  mankind  are  more  or  less  exposed  is  in 
my  judgment  not  an  exhaustive  test  of  the  question  whether  or  not 
the  accident  arises  out  of  the  employment.  The  words  "out  of" 
necessarily  involve  the  idea  that  the  accident  arises  out  of  a  risk  in- 
cidental to  the  employment.  An  accident  arises  out  of  the  employ- 
ment where  it  results  from  a  risk  incidental  to  the  employment,  as 
distinguished  from  a  risk  common  to  all  mankind,  although  the  risk 
incidental  to  the  employment  may  include  a  risk  common  to  all 
mankind.  Take  the  case  of  a  railway  accident.  It  is  scarcely  too 
much  to  say  that  everybody  travels  by  railway.  But  a  railway  guard 
is  exceptionally  exposed  to  the  risk  of  a  railway  accident  because  it 
is  his  duty  during  his  employment  to  be  continually  upon  the  train 
and  exposed  to  possibilities  of  collision,  derailment,  and  the  like. 
His  employment  involves  that  he  shall  run  daily  and  hourly  a  risk 
which  a  passenger  runs  occasionally.  A  railway  guard  who  is  in- 
jured or  killed  in  a  railway  accident  suffers  from  an  accident  arising 
not  only  in  the  course  of  but  out  of  his  employment.  In  the  case 
before  us  the  man  was  a  collector  and  canvasser  and  for  the  pur- 
poses of  his  employment  it  was  his  duty  throughout  the  day  to  be 
continually  passing  from  place  to  place  through  the  streets.  He 
was  thus  exceptionally  exposed  to  street  accidents.  He  might  go  his 
rounds  in  various  ways.  He  might  travel  on  foot,  or  by  omnibus, 
tramcar,  or  railway.  He  did,  in  fact,  go  on  a  bicycle.  The  learned 
county  court  judge  has  found  that,  when  the  accident  happened,  he 
was  engaged  in  his  duties,  and  that  it  was  known  to  and  not  for- 
bidden by  his  employers  that  he  went  about  his  district  on  his  bicycle. 
The  deceased  was  thei*efore  using  a  legitimate  mode  of  locomotion 
for  the  purpose  of  his  duties,  and  in  the  course  of  his  employment 
he  had  the  misfortune  to  be  knocked  down  by  a  tramcar  and  killed. 
Did  the  accident  arise  out  of  his  employment?  In  my  judgment  it 
did.  I  agree  that  it  might  have  happened  to  a  man  who  was  not  a 
canvasser  and  collector^  but  this  man  was  by  his  employment  s])e- 
cially  exposed  to  that  danger.  There  was  no  evidence  that  he  was 
not  an  expert  rider.  If  the  county  court  judge  had  found  that  it 
was  the  first  time  he  had  gone  on  a  bicycle,  and  that  he  had  thrown 
himself  into  danger  and  been  knocked  down,  there  would  have  been 
plenty  of  room  for  saying  that  the  accident  did  not  arise  out  of  his 
employment  but  through  "his  own  incapacity,  but  the  learned  county 
court  judge  has  found  nothing  of  the  kind. 

Api)eal  allowed. 


'See  Butt  v.  Provident  Clothing  Co.,  6  B.  W.  C  C.  18  (C.  A.  EiiR  1913). 
where  however,  the  employe  while  required  by  his  employment  to  he  con- 
stantly in  the  streets  was  injured  hy  a  fall  from  a  bicycle  which  his  em- 
ployer neither  furnished  nor  authorized  him  to  use  and  whose  use  it  woult 
have  forbidden  had  it  been  known. 


74  APPENDIX. 

GREENE  V.  SHAW. 
Court  of  Appeal,  Ireland,  1911.    46  Ir.  L.  T.  18. 

The  deceased  was  a  herd  upon  two  farms,  who  usually  went 
from  home  to  the  farms  by  bicycle,  with  the  sanction  of  his  em- 
ployer. He  was  setting  out  on  his  bicycle  to  go  to  one  of  the  farms 
one  day,  when  his  own  dog  got  in  the  way  and  upset  him,  inflicting 
injuries  from  which  he  died  two  days  later. 

An  appeal  by  the  employer  from  an  award  of  the  County  Court 
Judge  of  Kildare. 

Falconer,  K.  C,  and  Whittaker  for  the  appellant  (the  em- 
ployer), Fforde  for  the  respondent  (the  defendant). 

The  learned  County  Court  Judge  found  that  the  death  was 
caused  by  accident  arising  out  of  and  in  the  course  of  the  employ- 
ment. 

Barry,  L.  C.  This  is  a  sad  case,  and  we  are  more  than  usually 
anxious  to  arrive  at  the  real  truth.  While  Mr.  Falconer  was  argu- 
ing the  case,  it  seemed  to  me  that  the  law  was  absolutely  settled  in 
his  favor.  I  confess,  however,  that  I  was  greatly  affected  by 
Pierce's  Case  (1911)  i  K.  B.  997,  4  B.  W.  C.  C.  242)  cited  by  Mr. 
Fforde  in  his  very  able  argument,  because  I  would  myself  be  pre- 
pared to  come  to  the  conclusion  that  the  man  was  acting  in  the 
course  of  his  employment.  He  was  going  from  the  house  on  one 
farm,  where  he  lived,  to  the  other  farm  to  see  cattle,  and  upon  that 
branch  of  the  case  Pierce's  Case  seems  to  carry  Mr.  Fforde's  con- 
tention the  whole  way,  but  on  examination  there  appears  to  me  to 
be  a  clear  distinction.  Buckley,  L.  J.,  said  in  that  case  that  the  ac- 
cident was  one  that  might  happen  to  any  man,  but  the  court  based 
their  judgment  on  the  fact  that  the  applicant,  having  to  be  con- 
stantly on  the  streets  in  the  exercise  of  his  employment,  was  more 
exposed  than  other  persons  to  street  dangers.  There  was  no  spe- 
cial exposure  of  this  unfortunate  man  to  the  dangers  of  this  road. 
He  passed  over  it  perhaps  twice  a  day ;  he  was  not  continually  ex- 
posed to  the  risks  of  it  in  the  same  way  as  the  canvasser  in  London. 

Cherry,  L.  J.  I  concur.  I  agree  with  the  Lord  Chancellor  as 
to  the  ability  with  which  Mr.  Fforde  argued  the  case.  He  put  the 
case  very  clearly,  and  as  well  as  it  could  be  put  by  any  counsel.  I 
think  there  was  some  confusion  as  to  whether  the  accident  arose  out 
of  and  in  the  course  of  the  employment.  It  did  arise  in  the  course 
of  the  employment.  The  employment  was  as  a  matter  of  fact  con- 
tinuous, and  the  man  was  going  from  one  farm  to  the  other.  Did 
the  accident  arise  out  of  the  employment  ?  That  is  the  real  critical 
point,  and  upon  that  point  I  can  not  distinguish  this  case  from  the 
Kitchenham  Case.  There  must  be  proof  that  the  accident  arose  out 
of  a  risk  which  is,  in  some  way,  peculiar  to  the  business  in  which 
the  workman  was  engaged.  It  need  not  necessarily  be  a  risk  peculiar 
to  that  business  alone.  This  is  what  distinguishes  Pierce's  Case  and 
M'Neice's  Case  (1911)  S.  C.  12;  48  Sc.  L  R.  15;  4  B.  W.  C.  C. 


KIKGIIORN    v.    GUTHRIE.  75 

351.  A  canvasser  going  through  the  streets  was  held  to  be  pe- 
cuHarly  Hable  to  the  risk  of  being  run  over.  Though  the  risk  itself 
was  not  peculiar  to  the  employment,  the  amount  of  risk  was  greater 
there  than  in  the  case  of  many  other  persons  using  the  streets.  Here 
we  have  a  man  obliged  once  or  twice  a  day  to  go  over  a  quiet  coun- 
try road ;  that  is  different  from  the  case  of  a  man  going  through  a 
crowded  street.  Under  these  circumstances,  with  regret  1  may  say, 
I  am  obliged  to  concur  in  the  decision  overruling  the  finding  of  the 
County  Court  Judge. 

Appeal  allowed.* 


KINGHORN  V.  GUTHRIE. 
Court  of  Session,  Scotland,  1913.    50  Sc.  L.  R.  863. 

An  appeal  by  the  employer  from  an  award  of  Sheriff-Substitute 
Guy,  of  the  Sheriff-Court  at  Edinburgh. 

Lord  Salvesen.  The  facts  in  this  case  are  very  simple.  It 
appears  that  the  respondent,  who  was  a  carter  in  the  employment  of 
the  appellant,  was  engaged  with  his  horse  in  the  appellant's  yard, 
which  is  situated  near  West  Bowling  Green  Street,  Leith,  when  he 
was  struck  by  a  sheet  of  corrugated  iron  which  was  blown  off  the 
roof  of  an  adjoining  building,  a  distance  of  about  70  feet.  It  is 
said — I  do  not  think  it  is  material — that  the  roof  of  the  same  build- 
ing which  was  of  an  unsubstantial  character,  had  been  blown  off 
on  three  or  four  previous  occasions  within  the  last  few  years,  but 
there  is  nothing  to  suggest,  so  far  as  the  knowledge  of  the  appellant 
is  concerned,  that  it  had  not  been  replaced  in  a  suitable  manner. 

I  put  the  question  that  was  put  by  the  Lord  President  in  the 
case  of  Rodger,  ( 19127  S.  C.  584 ;  5  B.  W.  C.  C.  547— What  were  the 
special  risks  incident  to  the  employment  of  this  workman?  I  should 
have  thought  the  risk  of  being  kicked  by  his  horse,  or  of  being  in- 

^  Accord:  Sheldon  v.  Necdham,  30  T.  L.  R.  590  (C.  A.  Khr.  1914).  char- 
woman sent  out  to  mail  a  letter  slipped  on  a  banana  peel  left  on  the  pave- 
ment and  Ijroke  her  leg;  Hopkins  v.  Michigan  Sugar  Co.,  150  N.  W.  325 
(1915),  where  it  was  held  that  the  risk  of  slipping  and  falling  on  icy  streets 
was  not  one  incidental  to  the  claimant's  employment  as  inspecting  engineer 
of  six  sugar  factories,  the  fall  which  he  sustained  wliile  running  for  a  street 
car  on  his  way  home  from  an  inspection  trip  heing  held  not  to  arise  out  of 
his  employment;  and  see  the  case  of  IVindcn  v.  Com.  Power  Co.,  20  Detroit 
Leg.  News  39,  where,  however,  the  claimant  fell  on  ice  on  his  own  premises 
on  his  way  to  water  his  master's  horse  whicli  he  kept  in  his  own  stable; 
see  also.  Rodger  v.  Paisley  School  Board,  49  Sc.  L.  R.  413  (Sc.  Ct.  Sess. 
1912),  5  B.  W.  C.  C.  547.  school  janitor  sent  on  errand  on  a  hot  day  fainted 
from  the  heat  and  fractured  his  skull,  with  which  compare  Milliken's  Case, 
216  Mass.  293  (1914).  driver  during  a  fit  of  loss  of  memory  ah'ghtcd  from  the 
wagon  and  wandered  into  a  swamp,  thereby  contracting  pneumonia. 

Contra:  Bett  et  al.  v.  Hughes,  52  Sc.  L.  R.  93  (Sc.  Ct.  Sess.  1914). 
coachman  sent  on  bicycle  to  post-oflfice  for  mail,  the  majority  of  the  court 
held  that  to  make  the  "character  and  quality  of  the  risk  depend  on  the  number 
of  times  which  the  workman  is  called  upon  to  face  it,"  would  set  up  an  absurd 
criterion,  Lord  Johnston,  diss. 


7^  APPENDIX. 

jured  in  the  course  of  driving  his  horse  through  the  traffic  along 
the  streets;  but  certainly  no  one  would  have  said  that  one  of  the 
risks  of  his  employment  as  a  carter  was  that  a  piece  of  corrugated 
iron  might  come  down  from  a  neighboring  building  seventy  feet 
away  and  hit  him  on  the  shoulder  and  face.  That  is  not  what  one 
would  describe  as  an  ordinary  risk.  It  is  an  extraordinary  occur- 
rence— a  thing. that  might  occur  when  a  great  gale  is  blowing.  The 
workman  is  not  specially  exposed  to  that  risk  because  of  his  em- 
ployment. It  may  be  that  the  locality  is  one  which  is  windy,  or  it 
may  be  a  locality  where  the  houses  are  less  substantial  than  they  are 
in  other  parts  of  the  town ;  but  that  is  not  a  risk  arising  out  of  his 
employment,  for  any  person  frequenting  the  yard  would  be  exposed 
to  exactly  the  same  risk.  It  is,  of  course,  true  that  he  would  not 
have  met  with  the  accident  unless  he  had  been  in  that  particular 
place,  and  that  he  would  not  have  been  in  that  particular  place  unless 
he  had  been  engaged  in  that  particular  employer's  work ;  but,  as  the 
A'Taster  of  the  Rolls  said,  that  is  not  enough  ;  you  must  point  to  some- 
thing in  the  nature  of  the  employment  that  makes  you  peculiarly 
liable  to  a  risk  of  that  kind. 

Now,  the  only  case  that  presents  some  difficulty  at  first  sight  is 
the  case  to  which  we  referred — George  Anderson  v.  Adamson, 
(1913)..  50  S.  L.  R.  855;  6  B.  W.  C  C.  874  {ante)—m  which  the 
First  Division  held  the  other  day  that  an  accident  occurring  through 
a  slate  falling  on  a  person  who  was  working  in  a  back-green  was, 
upon  the  admitted  facts  of  the  case,  an  accident  arising  out  of  the 
employment.  But  then  we  have  not  the  same  facts  admitted  in  this 
case  as  were  admitted  there.  The  two  facts  which  were  admitted 
there,  and  which  seem  to  me  to  differentiate  this  case  entirely  from 
that  of  Anderson,  are,  in  the  first  place,  that  the  man  there  was 
stooping  over  his  work  and  was  therefore  unable  to  avoid  a  danger 
from  above ;  and,  in  the  second  place,  that  other  workmen  who  were 
in  the  same  place,  but  who  were  not  compelled  to  stoop,  were  able 
to  avoid,  and  did  in  point  of  fact  avoid,  exactly  the  same  danger  to 
which  he  succumbed.  It  was  held  by  the  First  Division  that  the 
workman's  special  employment  had  appreciably  increased  the  risk 
of  accident  of  this  particular  kind ;  and  upon  that  ground,  although 
the  Court  thought  it  was  a  narrow  case,  they  did  not  interfere  with 
the  decision  at  which  the  Sheriff  had  arrived. 

The  present  case  is  quite  distinguishable  from  that  of  Ander- 
son ;  and  we  would  be  opening  the  door  very  wide — it  has  already 
been  opened  pretty  wide  in  workmen's  compensation  cases — if  we 
were  to  hold  that  because  a  man  is  employed  in  a  particular  place, 
therefore  any  accident  which  occurs  to  him  in  that  place  because  of 
the  nature  of  its  surroimdings  is  an  accident  arising  out  of  his  em- 
ployment. I  think  that  would  be  going  a  great  way  beyond  any  of 
the  decided  cases.  I  have  therefore  no  difficulty  in  holding  that  we 
should  sustain  the  appeal,  and  hold  upon  the  facts  stated  that  the 
Sheriff  was  not  entitled  to  find  in  law  that  the  accident  to  the  re- 
spondent arose  out  of  his  employment. 

Lord  Dundas.     I  do  not  entertain  so  clear  and  confident  an 


M ALONE  V.  CAVZER,  IR\IXE  &  CO.  yj 

opinion  as  my  brother  Lord  Salvesen  about  the  way  in  which  this 
case  ought  to  be  disposed  of.  1  have  had,  and  still  have  some  doubt 
about  the  matter,  but  I  do  not  press  ic  so  far  as  to  dissent  from  the 
conclusion  proposed,  in  which  i  understand  your  Lordship  and  my 
brother  Lord  Guthrie  concur.  I  confess  I  find  it  rather  difficult  to 
point  to  any  really  substantial  or  satisfactory  distinction  between 
this  case  and  that  of  George  Anderson  v.  Adamson  {supra),  de- 
cided a  few  days  ago  in  the  other  Division.  Then  again,  the  Sheriff- 
Substitute  is,  of  course,  the  master  of  fact,  and  the  question  here  is 
largely,  though  not  entirely,  one  of  fact.  But  your  Lordshijjs,  as  I 
understand,  all  consider  that  upon  the  facts  found  the  arbiter  was 
not  entitled  in  law  to  hold  as  he  has  done,  and  having  stated  my 
doubt  about  the  matter  I  do  not  propose  to  say  anything  more. 

The  Lord  Justice  Clerk  and  Lord  Guthrie  delivered  judg- 
ments concurring  with  that  of  LoiiD  Salvesen. 

Appeal  allowed.^ 


(c)   "Is  caused  to  a  workman. 


MALONE  V.  CAYZER,  IRVINE  &  CO. 

Court  of  Session,  Scotland,  1908.     1908  Session  Cases  479. 

Appeal  by  the  applicant  against  the  decision  of  the  Sherift- 
Substitute  of  Glasgow  in  favor  of  the  employers.  In  an  arbitration 
under  the  Workmen's  Compensation  Act,  1897,  between  Mrs.  Mary 
Ann  Mullen,  or  Malone,  pursuer,  and  Cayzer,  Irvine  &  Co.,  ship- 
owners, defenders,  th«  pursuer  claimed  compensation  for  the  deatlt 
of  her  husband. 

The  Sheriff-Substitute  (Davidson)  sustained  a  plea  that  the 
application  was  irrelevant,  and  dismissed  it.    An  appeal  was  taken. 

Lord  President.  The  facts  which  gave  rise  to  the  controversy 
here  are  certainly  somewhat  out  of  the  common.  It  is  an  arbitration 
under  the  Workmen's  Compensation  Act,  the  claimant  in  it  lacing  the 
widow  of  a  workman  called  Malone,  who  was  in  the  employment 
of  the  resi)ondents,  Cayzer,  Irvine  &  Co.  The  averments  of  the 
claimant  and  appellant  set  forth  that  while  Malone  was  at  his  work 
in  May  a  splinter  of  iron  flew  into  his  right  eye.  That  of  course  was 
an  ordinary  accident  in  the  course  of  his  em])loyment,  which,  had 
he  survived,  would  have  entitled  him  to  make  a  claim  for  compen- 
sation in  the  ordinary  way.    It  seems  that  he  had  many  years  before 


^  So  where  the  occurrence  is  one  which  mipht  occur  anywhere,  yet  if  the 
employe's  work  surroundings  are  such  as  to  increase  its  injurious  effects,  the 
resulting  injury  is  held  to  arise  out  of  the  employment.  Compare  Wicks  v. 
Dozvell,  L.  R.  1905,  2  K.  B.  225,  and  5/iaTC'  (Glasgozc)  Ltd.  v.  Macfarlane,  52 
Sc  L  R  236  (Ct.  of  Sess.  1914),  with  Rod(jer  v.  Paisley  School  Board,  49 
Sc  L.  R.  531  and  see  Chitty  v.  Nelson,  126  L.  L.  J.  172  (1908),  2  B.  W.  C. 
C.  496. 


/O  APPENDIX. 

lost  the  sight  of  his  other  eye,  and  the  injury  was  such  that  the  sight 
of  his  remaining  eye,  according  to  the  averments,  immediately  began 
to  fail,  and  became  gradually  worse  until  he  was  rendered  almost 
blind.  Then,  continues  the  claimant — I  now  read  textually — "In 
consequence  of  said  injury  the  said  John  Malone  received  a  severe 
shock,  and  his  nervous  system  completely  broke  down.  Owing  to 
the  gradual  loss  of  sight  in  his  right  eye,  and  consequent  blindness, 
the  said  John  Malone's  mind  became  affected,  and  he  became  in- 
sane, and  on  August  20,  1907,  he  committed  suicide  in  his  house  at 
401,  Rutherglen  Road.  The  death  of  the  said  John  Malone  was 
due  to  the  aforesaid  accident,  w^hich  arose  out  of  and  in  the  course 
of  his  employment  with  the  respondents." 

Now,  upon  that  statement  of  the  facts,  the  learned  Sheriff- 
Substitute  before  whom  the  case  came  as  arbiter  dismissed  the  ap- 
plication as  irrelevant.  The  claimant  has  appealed  to  your  Lord- 
ships, and  the  motion  before  us  is  to  send  the  case  back  to  the 
Sheriff  and  tell  him  to  allow^  a  proof  of  those  averments  which  I 
have  read.  Of  course  there  can  be  no  question,  I  take  it,  as  to  the 
accident  having  actually  happened — that  is  to  say,  the  splinter  going 
into  his  eye,  but  what  happened  afterward  is  evidently  matter  upon 
which  there  may  be  controversy. 

The  expression  in  the  statute  is  that  the  death  must  be  the  result 
of  the  injury,  and  really  the  views  w'hich  I  hold  have  been  so  ex- 
tremely well  expressed  by  Lord  Collins  when  he  was  Master  of  the 
Rolls  that  I  prefer  to  take  what  he  has  said  rather  than  try  to  re- 
express  them  myself.  The  passage  which  I  am  going  to  cite  is  taken 
from  the  case  of  Dunham  v.  Clare,  (1902)  2  K.  B.  292.  The  state 
of  the  facts  in  that  case  was  that  a  man  was  carrying  some  heavy 
pipes,  one  of  which  slipped  and  fell  on  his  foot,  inflicting  a  wound 
in  his  toe.  He  was  put  into  a  hospital,  and  a  disease  called  phleg- 
monous erysipelas  supervened.  The  evidence  was  that  erysipelas 
of  this  description  was  a  very  unusual  consequence  of  a  wound  of 
the  kind,  and  that,  according  to  the  theory  which  at  present  obtains, 
was  caused  by  the  introduction  somewhere  or  other  of  a  germ.  Lord 
Collins  says  this:  "The  applicant  for  compensation  therefore  has 
to  show  an  accident  causing  injury  and  death  or  incapacity  resulting 
from  the  injury.  In  the  present  case  there  was  admittedly  an  acci- 
dent causing  injury,  and  the  only  question  is  whether  death  in  fact 
resulted  from  the  injury.  If  death  in  fact  resulted  from  the  injury, 
it  is  not  relevant  to  say  that  death  was  not  the  natural  or  probable 
consequence  thereof.  The  question  whether  death  resulted  from  the 
injury  resolves  itself  into  an  inquiry  into  the  chain  of  causation.  If 
the  chain  of  causation  is  broken  by  a  novus  actus  interveniens,  so 
that  the  old  cause  goes  and  a  new  one  is  substituted  for  it,  that  is  a 
new  act  which  gives  a  fresh  origin  to  the  after-consequences.  In 
dealing  with  an  obligation  created  by  the  Act  we  are  not  dealing 
with  a  case  of  contract  or  tort  or  with  a  liability  of  a  criminal  nature. 
In  the  case  of  a  contract,  a  person  who  commits  a  breach  of  it  is 
liable  for  the  consequences  which  naturally  follow  from  the  breach. 
So,  too,  in  cases  of  tort,  when  the  question  arises  whether  a  person 


MALOXE  V.  CAVZEK,  IRVINE  &  CO. 


is  liable  in  respect  of  a  breach  of  some  duty  imposed  upon  him,  he 
probably,  and  in  some  cases  certainly,  comes  under  a  somewhat 
larger  liability  than  would  be  the  case  if  it  were  a  breach  of  con- 
tract, but  still  the  liability  is  measured  by  what  are  the  reasonable 
and  probable  consequences  of  his  breach  of  duty.  That  lets  in  the 
consideration  of  reasonableness.  No  question  of  reasonableness 
comes  into  the  present  discussion.  The  Act  has  imposed  the  liability 
irrespective  of  any  error  of  judgment  or  negligence  on  the  part  of 
the  employer.  The  only  question  to  be  considered  is,  "Did  the  death 
or  incapacity  in  fact  result  from  the  injury?"  That  exactly  ex- 
presses my  opinion,  and  if  that  is  so  I  think  that  the  SheritY-Substi- 
tute  was  too  quick  here  in  dismissing  this  case  as  irrelevant  upon  the 
face  of  it. 

I  do  not  think  I  ought  to  say  much  more,  except  to  explain  that 
I  am  not  very  far  from  saying  that  upon  the  face  of  this  pleading 
there  is  evidently  made  out  a  case,  because  the  question  is  whether 
causation  is  or  is  not  made  out,  and  it  may  be  a  somewhat  uphill 
matter  for  the  claimant  to  prove  her  case.  1  should  like  to  say  that 
she  will  have  to  do  something  more  than  say  simply  that  there  was 
a  possibility  of  death  arising  from  such  an  injury  in  such  a  w<iy — 
she  must  show  that  it  was  in  fact  the  result  of  the  injury.  I  have 
some  doubt  as  to  whether  the  state  of  knowledge  of  cerebral  pathol- 
ogy is  so  fixed  as,  in  circumstances  like  this,  to  enable  one  to  reach 
such  a  conclusion,  but  I  do  not  think  we  could  try  the  matter  from 
our  own  ideas  on  such  subjects.  Therefore  I  am  of  opinion  that 
we  should  remit  the  case  to  the  Sheriff-Substitute,  and  order  him 
to  allow  an  inquiry  into  the  matters  averred. 

Lord  M'Laren.  If  we  were  to  criticize  the  statements  of  facts 
in  this  case  with  the  same  strictness  which  we  do  in  ([uestions  of 
relevancy  in  actions  in  this  Court,  there  is  a  great  deal  I  think  to  be 
said  against  the  relevancy  of  the  averments,  because  I  can  not  gather 
from  the  Sheriff-Substitute's  statement  anything  more  than  this, 
that  the  man  committed  suicide  in  consequence  of  the  depression  of 
mind  brought  on  by  his  blindness.  There  is  no  averment  of  insanity 
in  the  physiological  sense  of  a  result  of  disease  of  the  brain,  but 
merely  that  a  man  has  committed  suicide,  and  is  supposed  to  have 
done  so  under  some  insane  impulse.  It  seems  to  me  that  m  con- 
struing the  Act  of  Parliament,  and  particularly  the  beginning  of  the 
first  schedule,  we  must  hold  that  when  the  Act  prescribes  as  a  condi- 
tion of  compensation  that  death  results  from  an  injury,  what  is 
within  the  contemplation  of  the  statute  is  a  material  injury  with 
death  materially  resulting  from  it.  To  explain  what  I  mean  regard- 
ing insanity — if  a  person,  being  a  workman,  were  to  receive  a  blow 
or  wound  on  the  head  which  set  up  inflammation  of  the  brain,  and 
a  medical  expert  came  to  the  conclusion  that  the  injury  to  the  brain 
was  the  result  of  the  blow  on  the  head,  and  if  the  injury  went  on 
and  left  the  man  in  an  insane  condition,  from  which  eventually  he 
died,  then  I  should  not  for  a  moment  doubt  that  the  man's  death  was 
the  result  of  the  accident.  Rut,  on  the  other  hand,  it  is  easy  to  ficrure 
cases  of  death  resulting  only  from  tl-^e  moral  effect  of  an  accident. 


8o  APPENDIX. 

If,  for  example,  a  man  in  consequence  of  the  loss  of  his  sight  took 
to  drinking  and  shortened  his  life  by  intemperance,  that  would  be  a 
very  clear  case  for  not  giving  compensation,  because  although  in  a 
sense  death  was  the  result  of  the  injury,  it  was  not  a  material  but  a 
moral  result.  Now,  in  this  case  I  am  not  disposed,  any  more  than 
your  Lordship,  to  construe  the  statement  of  the  Sheriff-Substitute, 
which  is  merely  an  echo  of  the  averments  of  the  party,  with  great 
strictness.  I  think  there  ought  to  be  a  proof,  and  as  the  parties 
might  wish  to  bring  the  case  before  us  again,  I  hope  the  Sheriff- 
Substitute  wall  direct  his  attention  to  the  point  whether  this  is  insan- 
ity that  would  be  proved  by  medical  evidence  of  the  symptoms,  or 
whether  it  is  anything  more  than  a  just  mode  of  stating  the  supposed 
cause,  because  there  must  be  some  cause  for  the  suicide.  I  agree 
that  it  is  desirable  to  have  the  facts  brought  before  us,  and  I  notice 
that  in  the  case  of  Dunham  v.  Clare  (sup.),  which  your  Lordship 
cited,  there  had  been  an  inquiry,  and  the  judgment  of  the  Court 
proceeded  upon  a  statement  of  the  facts  proved  in  the  case.- 


CHAPTER  II. 

Serious  and  Wilful  Misconduct. 


JOHNSON  V.  MARSHALL,  SONS  &  COMPANY,  LTD. 
Hoitse  of  Lords,  1906.    Law  Reports  (1906)  Appeal  Cases,  409. 

Appeal  by  the  applicant  from  the  judgment  of  the  Court  of 
Appeal  reversing  the  decision  of  the  Judge  of  the  Gainsborough 
County  Court  and  remitting  an  award  made  on  an  application  for 
compensation. 

'Accord:  Brown  v.  Kent,  L.  R.  1913,  3  K.  B.  624,  scarlet  fever  proved 
to  be  due  to  lowered  vitality  consequent  upon  the  injury  originally  sustained, 
Adams  v.  Thompson,  5  W.  C.  C.  19  (C.  A.  Eng.,  1911)  ;  In  re  Burns,  105 
N.  E.  601  (Mass.  1914),  blood  poisoning  from  bed-sores  of  workman  par- 
alyzed by  an  accident,  who  in  consequence  was  forced  to  lie  for  a  long  time 
in  one  position;  Newcovib  v.  Albcrtson,  85  N.  J.  L.  435  (1914),  abscess  on  the 
thumb  due  to  the  persistent  rubbing  of  a  splint  improperly  put  on  a  broken 
arm.  In  Yates  v.  So.  Kirby  Collieries,  L.  R.  1910,  2  K.  B.  538,  3  B.  W.  C.  C. 
418,  compensation  was  allowed  for  incapacity  caused  by  the  nervous  shock 
caused  to  a  miner  assisting  in  the  rescue  of  another  by  the  horrible  char- 
acter of  the  latter's  injury  though  no  physical  impairment  or  disease  re- 
sulted; Pugh  V.  London,  Brighton  etc.  R.  Co.,  L.  R.  1896,  2  Q.  B.  248;  Eaves 
V.  Blaenclvdach  Colliery  Co^,  Ltd.,  L.  R.  1909,  2  K.  B.  73.  2  B.  W.  C.  C.  329 
and  Mihuaukee  v.  Industrial  Commission,  151  N.  W.  274  (Wis.  1915).  See 
however.  Bellamy  v.  /.  Humphries  &  Sons,  6  B.  W.  C.  C.  53  (C.  A. 
Fng  1913),  with"  which  compare  McCoy  V.  Michigan  Screw  Co.,  147  N.  W. 
572  CMich.  1914). 

'Sect.  I  (2)  (c)  British  Workmen's  Compensation  Act  of  1897.60  &  61 
Vict.  37  provided  that  "if  it  be  proved  that  the  injury  to  a  workman  is  attrib- 
utable to  the  serious  and  wilful  misconduct  of  that  workman  any  compensa- 
tion claimed  in  respect  of  that  injury  shall  be  disallowed.     The  same  clause 


JOHNSON  V.   MARSHALL,  SONS  &   CO.  Ol 

Lord  Loreburn,  L.  C.  My  Lords,  I  agree  with  the  Court  of 
Appeal  that  the  result  of  the  hearing  in  the  County  Court  was  un- 
satisfactory. Mathew,  L.  J.,  went  further  and  held  that  judgment 
ought  to  be  entered  for  the  applicant.  That  is  also  my  opinion. 
The  facts  so  far  as  they  are  material  have  not  been  disputed.  A 
workman  was  found  fatally  injured  in  a  lift  in  his  employers'  work- 
shop without  a  load  and  no  one  was  allowed  to  use  the  lift  unless 
he  was  in  charge  of  a  load.  That  is  all  we  know.  It  was  an  acci- 
dent and  the  widow,  now  appellant,  must  have  compensation,  unless 
the  employers  can  prove  that  the  injury  was  "attributable  to  the 
serious  and  wilful  misconduct"  of  the  workman.  That  the  burden 
of  proving  this  was  on  the  employers  is  beyond  question.  We  are 
not  dealing  with  negligence,  but  with  something  far  beyond  it  and 
we  are  applying  a  remedial  statute.  I  can  perceive  no  evidence  of 
serious  and  wilful  misconduct.  No  doubt  it  was  misconduct  to  enter 
the  lift  when  not  in  charge  of  a  load  for  that  was  a  disobedience  of 
orders  lawfully  given.  It  was  "wilful"  in  the  sense  that  the  man 
presumably  entered  of  his  own  accord  but  the  word  "wilful"  I  thnik 
imports  that  the  misconduct  was  deliberate,  not  merely  a  thought- 
less act  on  the  spur  of  the  moment.-  Further,  the  Act  says  that  it 
must  be  "serious,"  meaning  not  that  the  actual  consequences  were 
serious  but  that  the  misconduct  itself  was  so.  If  a  servant  was 
found  once  using  the  front  door  instead  of  the  back  door  contrary 
to  orders  it  would  be  misconduct  no  doubt.  Could  any  one  say  that 
it  was  serious  misconduct?  So  here,  the  lift  was  intended  for  use 
by  workmen  in  charge  of  a  load,  forbidden  to  workmen  not  in  charge 
of  a  load.     The  offence  was  not  that  the  man  used  it  but  that  he 


appears  in  the  act  of  1906,  6,Edw.  VII,  Chap.  58,  except  that  the  ^vords  unless 
the  injury  results  in  death  or  serious  and  permanent  disablement"  all  mserted 
before  the  last  three  words  "shall  be  disallowed."  Serious  and  wilful  miscon- 
duct is  made  a  bar  to  compensation  in  all  cases,  as  in  the  British,  Act  of  189/, 
in  the  Acts  in  force  in  California,  Connecticut,  Massachusetts,  New  Hamp- 
shire and  the  Wisconsin  Act  of  1911.  In  some  of  these  it  is  coupled  witli  m- 
toxication.  see  note  1  to  Nckoosa-Edwards  Co.  v.  Industrial  Commission,  post 
p.  90.  In  Nebraska  compensation  is  refused  for  injuries  resulting  from  wilful 
negligence— which  is  defined  as  consisting  of  (1)  deliberate  act  or  (2)  such 
conduct  as  evidences  reckless  indifference  to  danger  or  (3)  mtoxication.  In 
Michigan  it  is  denied  if  the  injury  results  from  the  intentional  and  wiltul  mis- 
conduct of  the  injured  workman.  In  Ohio,  Oregon,  Texas,  Washington  and 
Wisconsin  compensation  for  intentionally  self  inflicted  injuries  is  refused 
While  in  Iowa,  Louisiana,  Maryland,  Minnesota,  Nevada  and  Rhode  Island 
compensation  is  denied  when  the  injury  is  caused  by  "the  wilful  intention  of 
the  injured  employe  to  bring  about  the  injury  or  death  of  himself  or  another. 
*  So  a  boy  at  work  on  a  screw  cutting  machine,  who,  acting  "on  a  sudden 
impulse,  tried  to  pick  out  of  the  moving  machine  a  screw  wluch  had  fallen 
from  its  place,"  was  held  not  to  be  guilty  of  "wilful"  misconduct,  Recks  v. 
Kynoch,  18  T.  L.  R.  34  (C.  A.  Eng.  1901),  4  W.  C.  C.  14.  See  also,  the  ruling 
of  the  Michigan  Industrial  Accident  Board  ni  Krausc's  Case,  3  Bulletm  of 
Mich.  Ind.  Ace.  Board,  p.  12,  citing  a  similar  ruling  of  the  Wisconsin  Com- 
mission;  but  see  United  Collieries  Ltd.  v.  McGliie,  41  Sc.  L.  R.  /Od.  8  Fraser 
808  (Sc.  Ct.  Sess.  1904),  where,  though  the  sheriff  found  that  the  deceased 
miner  broke  the  rule  in  question  "presumably  from  absent-mindedness,"  the 
Court  of  Session  set  aside  his  ward  based  on  his  finding  that  m  so  doing  the 
deceased  was  not  guilty  of  serious  and  wilful  misconduct. 


82  APPENDIX. 

used  it  without  a  load.  I  can  not  agree  that  a  lift  is  an  appliance  so 
dangerous  that  the  use  of  it  when  believed  to  be  in  proper  condition 
and  intended  for  use  does  of  itself  amount  to  serious  misconduct. 
Certainly  it  is  for  the  arbitrator  under  the  Act  to  decide  questions 
of  fact  but  when  there  is  no  evidence  it  is  for  the  Court  to  inter- 
pose.^ Accordingly  I  am  of  opinion  that  an  order  should  be  made 
declaring  the  applicant  entitled  to  compensation  and  directing  the 
County  Court  Judge  to  assess  the  amount. 

Lord  James.  My  Lords,  in  order  to  determine  this  case  it  is 
necessary  to  bear  in  mind  the  scope  and  object  of  the  Act.  The 
main  object  was  to  entitle  the  workman  who  sustained  injury  whilst 
engaged  in  certain  employments  to  recover  compensation  from  the 
employer  although  he  was  guilty  of  no  default.  The  intention  was 
to  make  "the  business"  bear  the  burden  of  the  accidents  that  hap- 
pened in  course  of  the  employment  and  relief  from  this  liability  is 
not  found  even  if  the  injured  workman  be  guilty  of  negligence. 
The  doctrine  of  contributory  negligence  was  superseded  by  the  Act. 
But  it  was  thought  that  if  no  check  was  placed  on  the  workmen  they 
might  be  induced  recklessly  to  induce  accidents  of  a  serious  char- 
acter afifecting  many  lives  and  much  property  and  so  the  Act  con- 
tains the  provision  that  if  the  workman  be  guilty  of  "serious  and 
wilful  misconduct"  he  will  be  disentitled  from  recovering  compen- 
sation. Now  it  is  impossible  to  give  any  general  definition  of  the 
words  "serious  and  wilful  misconduct :"  application  of  them  must 
be  made  to  each  case  as  it  arises.  But  the  use  of  the  word  "serious" 
shows  that  misconduct  alone  will  not  suffice  to  deprive  the  work- 
man of  compensation.  The  class  of  misconduct  that  would  do  so 
might  well  be  represented  by  such  instances  as  if  a  workman  whilst 
working  in  a  mine  in  certain  seams  of  coal  struck  a  match  and  lit 
his  pipe  or  if  he  walked  into  a  gunpowder  factory  with  nailed  boots, 
refusing  to  use  the  list  shppers  provided  for  him.  Of  course  these 
are  but  instances  illustrating  conditions  of  absolute  disregard  of  the 
lives  and  safety  of  many.  But  on  the  other  hand  misconduct  may 
well  exist  that  is  not  "serious"  in  its  nature  and  therefore  does  not 
destroy  the  right  to  compensation.  The  circumstances  of  the  case 
before  your  Lordships  may  be  dealt  with  by  way  of  illustration.  A 
lift  is  provided  in  a  factory,  the  object  of  the  employer  is  that  it  shall 
be  used  by  men  when  in  charge  of  loads  and  notices  forbidding  other 
use  are  placed  in  the  factory.  I  will  assume  that  without  the  fact 
being  brought  to  the  knowledge  of  the  employer  or  his  representa- 
tives the  workmen  generally  and  the  deceased  man  on  the  occasion 
in  question  used  this  lift  although  they  were  not  in  charge  of  any 
loads ;  but  from  the  nature  of  things  no  danger  could  be  anticipated 
from  the  use  of  the  lift.    It  was  intended  to  be  used  by  men  ascend- 


'The  earlier  English  cases  regarded  the  question  as  one  peculiarly  for 
the  County  Court  Judge,  on  the  other  hand  the  Scottish  Court  of  Sessions 
freely  reversed  awards  for  injuries  or  deaths  due  to  the  deliberate  breach 
of  safety  rules— particular  statutory  rules,  Daily  v.  IVatson,  O'Hara  &  Cad- 
::ow  Coal  Co.,  United  Collieries  Co.  v.  McGhie,  cited  in  note  3  to  Bxst  v.  Lon- 
don &  S.  W.  Ry.,  post,  p.  87. 


JOHNSON  V.   MARSHALL,   SONS  &r  CO.  83 

ing  and  descending.  If  there  was  a  load  in  the  lift  the  danger  of 
its  use  could  not  be  diminished,  possibly  it  might  be  increased.  No 
result  producing  injury  to  any  one  could  be  anticipated  by  the  use 
of  the  lift  by  the  individual  workman.  The  misconduct  therefore 
is  reduced  to  the  bare  breach  of  a  rule  from  which  breach  no  in- 
juries actionable  or  otherwise  could  reasonably  be  anticipated.  Does 
this  amount  to  serious  misconduct?  In  my  opinion  it  does  not.  I 
think  that  there  is  a  test  which  may  fairly  be  applied.  Supposing 
that  the  employer,  on  learning  that  a  workman  had  travelled  in  the 
lift  without  a  load,  had  dismissed  him  without  notice  and  that  in 
consequence  an  action  had  been  brought  by  the  workman.  The 
question  whether  the  misconduct  was  sufficient  to  justify  the  dis- 
missal without  the  notice  contracted  for  would  be  for  the  jury  to 
determine.  I  feel  sure  that  most  juries  would  certainly  hold  that 
no  ground  for  dismissal  had  been  shown.  Yet  I  think  that  the 
words  of  the  statute  ''serious  misconduct"  represent  a  higher  stand- 
ard of  misconduct  than  that  which  would  justify  immediate  dis- 
missal. I  think  it  worthy  of  observation  that  although  it  ought, 
under  the  circumstances  that  occurred  at  the  hearing  before  the 
County  Court  Judge,  to  be  assumed  that  there  was  no  acquiescence 
in  the  user  by  the  employer,  yet  the  fact  that  the  deceased  man  and 
other  workmen  openly  used  the  lift,  for  they  could  not  do  so  se- 
cretly, shows  that  they,  at  least,  did  not  think  that  their  conduct 
would  be  regarded  as  liable  to  much  penalty.  I  would  also  add  that 
serious  misconduct  can  not  be  construed  by  the  consequences  of  any 
act.  A  man  may  be  told  not  to  walk  on  the  grass.  He  does  so, 
slips  up  and  breaks^ his  leg.  The  consequences  are  serious  but  the 
misconduct  is  not  so.  If  the  case  were  sent  down  for  a  further 
hearing  the  only  material  fact  which  could  be  added  to  those  already 
proved  would  be  that  tfie  employer  had  no  notice  of  the  user  of  the 
lift.  In  giving  this  judgment  I  have  assumed  that  such  was  the 
case.  I  therefore  think  that  all  the  facts  are  sufficiently  before  your 
Lordships  to  enable  you  to  form  a  final  judgment  in  the  case  and 
mine  is  that  the  applicant  is  entitled  to  recover. 

Lord  Robertson.  My  Lords,  the  question  whether  two  ad- 
jectives and  a  substantive  involving  censure  are  appropriately  ap- 
plied to  a  particular  act  clearly  ascertained  would  be  one  which 
might  well  cause  difTerence  of  opinion.  I  own  that  I  take  a  some- 
what stricter  view  than  aj^pears  to  prevail  m  the  House  to-day  and 
think  that  a  breach  of  the  regulation  directly  relating  to  personal 
safety  might  well  come  within  the  language  of  the  section  if  com- 
mitted intentionally  and  of  choice,  even  although  the  thing  done  did 
not  involve  anything  morally  censurable.  But  the  question  being 
one  of  conduct  is  one  of  circumstances  and  i  justify  my  acquiescence 
in  this  reversal  on  the  ground  that  I  am  not  confident  that  we  really 
know  how  or  why  this  man  came  to  enter  the  lift. 

Lord  Atkinson.  My  Lords,  I  concur,  though  not  without  con- 
siderable doubt,  in  the  opinion  that,  while  there  was  evidence  before 
the  County  Court  Judge  upon  which  he  might  legitimately  have 
found  that  the  deceased  man  had  been  guiltv  of  wilful  misconduct 


84  -  APPENDIX. 

on  the  occasion  of  the  happening  of  the  accident  which  caused  his 
death,  yet  that  evidence  did  not  amount  to  proof  that  his  misconduct, 
though  wilful,  was  in  addition  serious  within  the  meaning  of  the 
Act.    In  none  of  the  authorities  to  which  we  have  been  referred  has 
it  been  attempted  to  define  serious  misconduct.     It  is  scarcely  sus- 
ceptible of  precise  definition.     What  amounts  to  serious  misconduct 
ni  any  given  case  is  a  question  of  fact  to  be  determined  by  the  Judge 
of  first  instance  on  the  facts  of  that  case  and  the  function  of  the 
Court  of  Appeal  and  of  your  Lordships'  House  is  confined  to  decid- 
ing the  ciuestion  of  law  whether  there  was  any  evidence  to  sustain 
this  finding.     In  the  present  case  the  misconduct  of  the  deceased 
consisted  wholly  and  entirely  in  his  having  deliberately  and  in  dis- 
regard of  the  express  prohibition  in  writing  of  his  employers,  of 
which  he  must  be  taken  to  have  been  aware,  used  for  his  own  pur- 
poses as  a  passenger  lift  a  certain  hoist  erected  by  his  employers  in 
their  factory  and  designed  and  intended  by  them  to  be  used  only  for 
the  carriage  of  goods,  the  workmen  in  the  factory  being  forbidden 
to  use  it  except  when  bringing  up  or  down  the  loads  of  goods  of 
which  they  were  in  charge.    It  was  proved  in  evidence  that  the  men 
frequently  disregarded  the  notice  and  used  the  lift  as  a  passenger 
lift  but  it  was  found  as  a  fact  by  the  Judge  that  this  illegitimate 
user  was  unknown  to  the  employers.     No  evidence  whatever  was 
given  to  show  that  there  was  any  difficulty  in  using  the  lift  or  that 
the  deceased  was  unacquainted  with  the  proper  method  of  manag- 
ing and  controlling  it  or  that  any  accident  had  ever  resulted  from 
the  use  of  it  authorised  or  unauthorised.     There  was  no  person  in 
exclusive  charge  of  the  lift  and  it  appeared  to  have  been  managed 
and  controlled  on  each  occasion  of  its  use  by  the  man  or  men  who 
required  to  use  it.     Under  these  circumstances  one  must  I  think 
come  to  the  conclusion  on  the  evidence  that  there  was  no  reason  to 
apprehend  any  immediate  or  proximate  danger  in  the  unauthorised 
use  of  the  lift  or  that  the  deceased  knew  or  believed  that  there  was 
any  risk  .or,  if  risk  at  all,  any  but  a  very  remote  risk  of  injury  or 
accident  to  himself,  his  fellow  Avorkmen  or  to  the  machine  itself. 
The  necessity  which  undoubtedly  exists  for  the  strict  maintenance 
of   discipline  amongst   the  hands  engaged   in    factories   and   other 
establishments   where   machinery   is   used   and   the   grave   dangers 
which  might  result  if  any  general  laxity  of  discipline  were  permitted 
tend  to  render  important  breaches  of  rules  adopted  for  the  conduct 
of  business  which  in  other  places  and  under  other  circumstances 
might  fairly  be  regarded  as  trivial ;  and  it  is  the  consideration  of  this 
secondary  effect  of  the  disobedience  to  orders  or  of  violation  of 
rules  which  causes  me  to  entertain  great  doubt  as  to  the  correctness 
of  the  conclusion  to  which  I  have  come.     I  do  not  find  however 
that  much  reliance  was  placed  upon  these  considerations  in  the  au- 
thorities to  Avhich  we  have  been  referred.     The  danger  that  if  men 
engaged  in  mines  or  factories  are  permitted  without  risk  of_  loss  to 
transgress  in  small  things  they  may  be  tempted  to  transgress  in  great 
things  was  not  insisted  upon  and  indeed,  if  by  reason  of  this  sec- 
ondary effect  of  the  violation  of  rules  unimportant  in  themselves  the 


JOHNSON  Z'.    MARSHALL,   SONS  &    CO.  85 

wilful  misconduct  of  a  workman  has  always  to  be  regarded  as  seri- 
ous, the  word  "serious"  might  be  regarded  as  surplusage  and  the 
position  of  the  workman  would  be  rendered  worse  than  it  was  be- 
fore the  Act  was  passed.  In  Rmnboll  v.  Nunnery  Colliery  Co. 
(1899,  80  L.  T.  42;  I  W.  C.  C.  28),  Reeks  v.  Kynoch  (1901,  50  W. 
R.  113 ;  4  W.  C.  C.  14),  and  Smith  v.  South  Normanton  Colliery  Co. 
(1903,  I  K.  B.  204;  5  W.  C.  C.  14),  the  Court  of  Appeal  appar- 
ently considered  that  it  was  not  every  violation  by  a  workman  of  a 
rule,  general  or  special,  framed  for  the  regulation  of  the  industry  in 
which  he  was  engaged  or  every  deviation  from  or  disobedience  to 
the  orders  of  a  manager  or  superior  however  wilful  which  could  be 
regarded  as  necessarily  amounting  to  serious  misconduct.  Indeed, 
if  the  word  "serious"  used  in  this  connection  is  to  have  any  force 
or  weight  given  to  it  at  all,  it  must  I  think  mean  at  least  that  where 
the  risk  of  loss  or  injury  resulting  to  any  person  or  thing  from  the 
doing  of  any  particular  act  is  very  remote  or  where  the  loss  or  in- 
jury, even  if  probable,  would  be  trivial  in  its  nature  and  character, 
the  doing  of  that  act,  however  wilful,  does  not  amount  to  "serious 
misconduct"  within  the  meaning  of  this  statute,  sufficient  to  deprive 
an  injured  workman  of  the  benefits  conferred  upon  him  by  the  stat- 
ute, unless  the  indirect  influence  of  the  act  upon  the  discipline  of 
the  factory  is  to  make  every  transgression  serious.  In  Runiboll  v. 
Nunnery  Colliery  Co.  (suj).)  the  rule  deliberately  violated  by  the 
men,  a  rule  which  they  had  shortly  before  the  happening  of  the  acci- 
dent been  directed  by  the  deputy-manager  to  carry  out  in  a  particu- 
lar way,  namely,  a  rule  requiring  that  the  roof  of  the  mine  should 
be  adequately  propped,  was  one  of  those  rules  the  neglect  of  which 
amounted  to  an  offence  against  the  Coal  Mines  Regulation  Act,  1887 
(50  &  51  V.  c.  58),  subjecting  the  offender  to  a  penalty  of  £2  at  the 
least  to  be  recovered  summarily.  The  breach  of  that  rule  was  de- 
liberate. There  was  no  question  about  that.  The  danger  caused  by 
the  neglect  of  it  was  grave,  immediate  and  w^ell  recognised  and  its 
violation  therefore  excusable  than  the  disregard  in  this  case  of  the 
requirements  of  the  notice,  yet  Smith,  L.  J.,  in  giving  judgment  said 
that  he  could  not  regard  the  violation  of  these  general  rules  so  pun- 
ishable and  so  necessary  to  be  observed  for  the  safety  of  the  work, 
as  in  itself  and  as  a  matter  of  law  to  amount  to  serious  and  wilful 
misconduct.  In  the  present  case  there  was  no  evidence  that  the 
danger  of  loss  or  injury  resulting  to  any  one  from  the  use  of  the 
lift  was  immediate  or  probable.  Nor  w^as  any  evidence  given  by  the 
employers  on  many  points  on  which  one  would  suppose  that  it  might 
have  been  given,  such  as  the  nature  of  the  mechanism  of  this  lift, 
the  mode  in  which  it  was  worked,  regulated  and  controlled,  or 
whether  there  was  any  means  of  communication  between  the  interior 
of  the  lift  and  the  upper  floor,  so  that  the  person  actually  using  the 
lift  might  give  some  warning  to  those  on  the  u]-)pcr  floor  and  so 
prevent  any  attempt,  by  the  use  of  the  lever  on  the  upper  floor,  to 
cause  the  lift  to  ascend  or  descend.  For  all  that  appears  it  may  well 
be  that  this  unfortunate  accident  was  caused  by  the  lift  being,  by 
the  use  of  this  lever  on  the  top  floor,  suddenly  made  to  ascend  just 


86  APPENDIX. 

as  the  deceased  had  brought  it  to  a  standstill  and  was  in  the  very 
act  of  getting  out  of  it.  And  speaking  for  myself  1  may  say  that, 
had  it  been  proved  that  such  means  of  communication  as  I  have  indi- 
cated existed,  that  these  means  of  communication  were  used  by  those 
legitimately  using  the  lift,  that  the  deceased  had  refrained  from  giv- 
ing any  warning  and  that  the  accident  had  occurred  in  the  way  sup- 
posed owing  to  the  absence  of  that  warning,  I  should  have  held  that 
there  was  abundant  evidence  of  wilful  and  serious  misconduct  on 
the  part  of  the  deceased.  The  employers  however  preferred  to  stand 
upon  the  letter  of  this  notice  and  to  rely  exclusively  on  the  infrac- 
tion of  their  rule.  They  have  not  therefore  in  my  opinion  given  any 
evidence  to  sustain  the  onus  of  proof  thrown  upon  them  by  the  stat- 
ute and  I  accordingly  think  the  appeal  should  be  allowed. 
Appeal  allowed.* 

BIST  V.  LONDON  AND  SOUTH-WESTERN  RAILWAY  CO. 
House  of  Lords,  1907.    Law  Reports  (1907)  Appeal  Cases,  209. 

Appeal  by  the  applicant  from  a  judgment  of  the  Court  of  Ap- 
peal (Collins,  M.  R.,  Romer  and  Mathew,  L,  JJ.),  who  had  affirmed 
a  decision  of  the  judge  of  the  Basingstoke  County  Court. 

The  County  Court  judge  found  as  facts :  That  the  deceased 
driver  was  killed  by  being  struck  by  the  arch  of  the  Elvetham  Road 
Bridge ;  that  the  deceased  was  so  struck  while  standing  on  the  tender 
of  his  engine  when  the  train  wa's  in  motion  and  running  at  a  fairly 
high  speed ;  that  at  the  time  the  deceased  went  up  on  to  the  tender 
there  was  a  sufficient  supply  of  coal  in  the  well  of  the  tender  for  the 
purpose  of  firing  the  engine  until,  at  all  events,  the  train  arrived 
at  Basingstoke;  that  had  it  been  necessary  a  supply  of  coal  could 
probably  have  been  obtained  at  Basingstoke  of  a  better  quality ;  that 
the  deceased  man  was  fully  aware  of  the  rule  prohibiting  enginemen 

■'It  is  not  necessary  that  the  injured  workman  has  disobeyed  a  statutory 
or  private  rule  promulgated  by  his  employer,  Guthrie  v.  Boase  Spinning  Co., 
3  Fraser  769  (So.  Ct.  Sess.  1901),  38  Sc.  L.  R.  483,  or  have  disregarded  an 
order  given  or  has  refused  to  use  safety  appliances  provided  by  his  em- 
ployer, as  in  Brook cr  v.  Warren,  23  T.  L.  R.  201  (C.  A.  Eng.  1907),  9  W.  C. 
C.  26,  it  is  enough  that  he  disregards  a  warning  of  danger,  John  v.  Albion 
Co  18  T.  L.  R.  27  (C.  A.  Eng.  1901),  4  W.  C.  C.  15;  Callaghan  v.  Maxwell, 
2  Fraser  420  (Sc.  Ct.  Sess.  1900),  37  Sc.  L.  R.  313;  Lanarkshire  Steel  Co.  v. 
Powell,  6  Fraser  1039  (Sc.  Ct.  Sess.  1904),  42  Sc.  L.  R.  231,  or  unnecessarily 
does  an  act  or  goes  to  a  place  obviously  or  notoriously  dangerous  to  a  high 
degree,  Lcishman  v.  Di.von,  47  Sc.  L.  R.  410  (Sc.  Ct.  Sess.,  1910),  3  B.  W.  C. 
C.  560;  but  see  Mitchell  v.  Whitton,  1907  S.  C.  1267  (Sc.  Ct.  Sess.),  44  Sc. 
L.  R.  955. 

But  the  injury  must  be  due  to  the  excess  of  danger  due  to  the  serious  and 
wilful  misconduct.  So  if  the  workman  deliberately  does  something  involving 
two  risks,  one  so  serious  that  to  run  it  would  be  serious  misconduct,  the  other 
such  that  running  it  amounted  at  most  to  mere  negligence,  he  is  not  barred 
unless  the  accident  resulted  from  the  serious  risk,  compare  John  v.  Albion 
Coal  Co.  with  Recs  v.  Powell  etc.,  Co.,  4  W.  C.  C.  17  (C.  A.  Eng.  1900)  ;  Sned- 
don v.  Glasgow  Coal  Co.,  7  Fraser  485  (Sc.  Ct.  Sess.  1905),  42  Sc.  L.  R.  365 
and  Praties  v.  Broxburn  Oil  Co.,  1907  S.  C.  581  (Sc.  Ct.  Sess.),  44  Sc.  L.  R.408. 


BIST  V.  LONDON  AC.   RV.  CO.  Sj 

from  going  upon  the  tender  while  the  train  is  in  motion  ;  that  it  was 
not  proved  to  his  (the  learned  County  Court  judge's)  satisfaction 
that  either  the  low  pressure  of  steam  or  the  loss  of  time  on  the  jour- 
ney was  caused  by  any  inferiority  in  the  quality  of  the  coal  on  the 
engine ;  and,  being  of  opinion  that  the  facts  constituted  "wilful  mis- 
conduct" within  the  meaning  of  the  Act,  he  gave  judgment  for  the 
employers. 

Lord  Loreburn,  L.  C.  My  Lords :  Everything  that  could  be 
said  in  support  of  this  appeal  has  been  said,  and  it  is  not  without  re- 
gret, which  would,  I  am  sure,  in  such  circumstances  be  common  to 
every  one,  that  I  have  come  to  the  conclusion  that  it  ought  to  be 
dismissed.  I  shall  not  say  anything  in  regard  to  the  construction 
of  this  Act,  which  has  already  been  discussed  in  previous  cases. 
The  only  question  here  is  whether  the  facts  wdiich  have  been  found 
admit  of  the  interpretation  which  has  been  placed  upon  them  by  the 
learned  judge  of  the  County  Court  when  he  came  to  the  conclusion 
that  they  proved  "serious  and  wilful  misconduct."  This  unfortu- 
nate man  broke  a  rule  which  certainly  is  a  very  important  rule. 
There  was  evidence  that  he  knew  of  its  existence,  and  that  he  know- 
ingly and  wilfully  acted  in  defiance  of  it.^  It  was  a  rule  to  save  life, 
and  to  prevent  danger  both  to  the  public  and  to  the  servants  of  the 
company."-^  I  can  not  say  that  there  was  no  evidence  to  warrant  the 
conclusion  of  the  learned  judge.^     It  is  quite  true  that  this  Act  is  a 


^It  is  not  necessary  that  the  injured  workman  has  disobeyed  a  statutory 
posted  rule  was  held  no  excuse  for  its  disobedience;  see  Condron  v.  Garvin 
Paul  &  Sons,  Ltd.,  6  Fraser  29,  Ct.  Sess.  1904,  and  McNicol  v.  Spiers,  Gibb 
&  Co.,  infra,  note  2 ;  biTt  see  McClelland  v.  Fore  River  Co.,  1  Cases  on  Massa- 
chusetts Work.  Comp.  Act,  122  (1913),  where  rules  were  posted  in  conspicu- 
ous places  and  when  orders  and  warnings  were  given  in  Knglish  to  a  for- 
eigner who  did  not  understand  the  language,  Admonitas  v.  Simmon  Co.,  Wise. 
Ace.  Bd.  1912,  cited  in  Bradbury  on  Workmen's  Compensation,  2nd  Ed., 
\'ol.  1,  p.  486.  ,    . 

■  As  to  how  far  it  is  important  that  the  rule  shall  be  one  whose  breach  m- 
volves  "danger  to  persons  other  than  the  person  infringing  it" — see  Cozens- 
Hardy,  M.  R.,  in  Casey  v.  Humphries,  Workmen's  Compensation  Reports  for 
1913.485  (C.  A.  Eng.). 

Mn  Donnachie  v^  United  Collieries,  1910  S.  C.  503  (Scot.  1910),  47  Sc.  L. 
R.  412,  it  was  held  that  where  a  breach  of  a  special  rule  did  not  per  sc  infer 
serious  and  wilful  misconduct,  it  was  prima  facie  evidence  thereof.  See  also. 
Gcorqe  v.  Glasqozv  Coal  Co.,  1908  S.  C.  846  (Sc.  Ct.  Sess.  1908).  1  B.  W.  C. 
C.  239,  L.  R.  1909,  A.  C.  123,  (H.  of  L.)  2  B.  W.  C.  C.  125;  Daily  v.  John 
Watson.  2  Fraser  1044  (Sc.  Ct.  Sess.  1900),  2,7  Sc.  L.  R.  782;  O'Hara  v.  Cad- 
cotv  Coal  Co.,  5  Fraser  439  (Sc.  Ct.  Sess.  1903).  40  Sc.  L.  R.  355  :  United  Col- 
lieries V.  McGhic,  8  Fraser  808  (Sc.  Ct.  Sess.  1904).  41  Sc.  L.  R.  705;  but  in 
Dobson  V.  United  Collieries  Co..  8  Fraser  241  (Sc.  Ct.  of  Sess.  1905),  43  Sc. 
L.  R.  260,  it  was  said  by  the  Lord-President  (Dunedin)  with  whom  Lord 
Kyllacby  agreed,  that  acting  in  breach  of  a  "properly  posted  statutory  rule 
(designed  to  secure  safety  of  the  workers  or  others)"  "that  is  serious  and  wil- 
ful misconduct  unless  he  can  show  that  there  was  some  dominant  reason  for 
breaking  the  rule  on  that  particular  occasion"  and  this  whether  the  particular 
worker  actually  knew  of  the  rule  or  appreciated  the  danger  of  what  he  was 
doing,  with  which  compare  McNicol  v.  Spiers.  Gibb  &  Co.,  1  Fraser  604  (Sc. 
Ct.  Sess.  1899),  36  Sc.  L.  R.  428.  where,  however,  not  only  was  the  workman 
ignorant  of  the  rule  but  it  was  habitually  and  notoriously  disregarded. 

In  Kansas  and  Louisiana,  the  deliberate  failure  to  use  a  safety  guard  or 


8<5  APPENDIX. 

remedial  Act,  and,  like  all  such  Acts,  should  be  construed  beneficially. 
Negligence  will  not  suffice.  I  think  that  the  duty  of  the  Court  is  to 
insist  that  there  shall  be  sufficient  proof,  and  to  scrutinise  that  proof, 
bearing  in  mind  always  that  negligence  will  not  suffice.  But  in  this 
case  I  think  that  there  was  sufficient  evidence,  and  therefore  we  are 
not  entitled  to  disturb  the  decision  of  the  County  Court  judge  and 
of  the  Court  of  Appeal. 

The  Earl  of  Halsbury.  My  Lords  :  I  am  of  uhe  same  opinion. 

Lord  Macnaghten.  My  Lords:  I  also  am  of  opinion  that  the 
appeal  must  be  dismissed. 

Lord  James  of  Hereford.  My  Lords :  I  am  not  disposed  to 
differ  from  the  opinion  expressed  by  my  noble  and  learned  friends, 
but  I  arrive  at  the  conclusion  that  the  judgment  is  correct  with  con- 
siderable doubt,  and  certainly  with  very  great  regret.  I  may  say  at 
once  that  if  I  had  occupied  the  position  of  the  learned  judge,  or  if 
this  case  had  been  submitted  to  a  jury,  and  I  had  been  one  of  the 
jury,  I  should  not  have  found  the  finding  which  the  learned  judge 
has  placed  on  the  record.  I  think,  of  course,  that  we  ought,  in  de- 
termining the  meaning  of  the  words  "serious  and  wilful,"  to  follow 
the  judgment  that  was  given  by  this  House  in  the  case  of  Johnson 
V.  Marshall,  (1906,  A.  C.  40;  8  W.  C.  C.  10),  and  I  think,  too,  that 
we  clearly  expound  the  intention  which  the  Legislature  had  in  fram- 
ing the  statute  if  we  hold  that  w^hich  is  "serious  and  wilful  miscon- 
duct" must  be  clearly  established  against  the  plaintiff  who  seeks 
damages.  Also  it  occurs  to  me  that  the  word  "wilful"  must  not  only 
mean  a  mere  intentional  breach  of  a  rule,  but  it  must  also  m.ean 
wilful  with  the  intention  of  being  guilty  of  misconduct.  An  in- 
stance was  given,  in  the  course  of  the  argument,  of  a  breach  of  this 
rule  by  an  engine-driver  leaving  the  footplate  for  the  purpose  of 
seeing  what  is  the  matter  with  his  engine.  Of  course  he  is  breaking 
a  rule,  and  in  one  sense  breaking  the  rule  is  misconduct ;  but  he  does 
not  break  it  for  the  purpose  of  being  guilty  of  misconduct  in  such 
a  case ;  he  breaks  it  for  the  purpose  of  doing  what  he  conceives  to 
be  best  for  his  employer.^  If  there  may  be  such  a  case  of  a  breach 
of  the  rule,  where  the  person  through  whose  act  the  cause  of  action 
arises  has  done  an  intentional  act,  we  must,  before  we  give  effect 
to  the  words  "serious  and  wdlful  misconduct,"  see  what  was  in  the 
man's  mind  at  the  time  that  he  did  so  break  the  rule.  In  this  case 
when  we  look  at  the  effect  which  is  to  be  given  to  the  word  "serious" 
as  controlling  it.  I  do  not  think  that  we  find  that  it  is  "serious"  in 
consequence  of  the  unfortunate  man  being  killed.  He  did  not  con- 
template that  for  a  moment.     Therefore  the  case  comes  to  this: 


to  obey  statutory  regulations  affecting  the  safety  of  life  or  limb  is  specially 
made  a  bar  to  compensation. 

*In  Mihaica  v.  Mlagenovich  et  a!,  and  the  City  of  Los  Angeles,  Dec.  Ind. 
Ace.  Com.  of  California,  Vol.  1,  No.  21.  p.  14,  it  was  held  that  a  foreman,  who 
had  warning  of  tlie  cave-in  of  a  ditch  and  could  have  escaped  was  not  guilty 
of  serious  and  wilful  misconduct  in  remaining  to  rescue  a  fellow-workman  in 
peril :  and  see  Lord  Dunedin  in  Dobson  v.  United  Collieries,  43  Sc.  L.  R.  260, 
p.  264. 


RAYNER  V.  SLIGII  FURNITURE  CO.  89 

Was  it  wilful  misconduct  in  the  mind  of  the  man  when  he  left  the 
engine  to  go  to  the  tender  for  the  purpose  of  obtaining  the  coal? 
Was  it  his  intention  to  commit  an  act  of  misconduct?  He  could 
not,  I  think,  have  contemplated  any  injury  to  anybody  else  but  him- 
self by  leaving  the  engine  and  taking  this  coal  from  the  tender; 
he  could  not  have  contemplated  any  injury  to  the  public,  to  any  pas- 
senger, or  to  the  man  who  was  working  with  him.  I  think  that  he 
forgot  the  existence  of  the  bridge,  and  therefore  did  not  contem- 
plate any  injury  to  himself.  For  these  reasons  I  am  inclined  at  pres- 
ent to  think  that  if  I  had  the  responsibility  cast  on  me  of  giving  the 
primary  decision  in  the  matter,  I  should  not  have  concurred  with  the 
learned  County  Court  judge,  but,  as  has  been  observed,  that  is  not 
the  question  which  we  have  to  determine  here.  The  learned  judge 
had  to  direct  himself  as  if  he  was  directing  a  jury,  and  I  must  con- 
fess that  I  think  that  this  matter  was  open  to  two  views,  and  that 
two  constructions  could  be  put  upon  the  man's  conduct.  The  learned 
judge  took  a  view  contrary  to  that  which  I  have  suggested  that  he 
might  have  taken,  and  chose  so  to  direct  l-kimself.  I  do  not  see  that 
it  is  within  our  province  to  differ  from  him  to  the  extent  of  saying 
that  the  judgment  must  be  set  aside. 


RAYNER  V.  SLIGH  FURNITURE  CO. 

Supreme  Court  of  Michigan,  1914.     146  N.  IV.  665. 

KupiN,  J.  This  case  is  brought  here  by  certiorari  to  the  Indus- 
trial Accident  Board.  ,  Adelbert'  Rayner,  the  applicant's  husband, 
was  injured  while  in  respondent's  factory  in  the  city  of  Grand  Rap- 
ids. About  100  carvers  and  cabinet  workers  were  employed  on  the 
third  floor  of  the  factory,  and,  on  the  blowing  of  the  noon  whistle, 
each  workman  was  required  to  proceed  to  the  end  of  the  room  and 
punch  the  time  clock  before  leaving  for  dinner.  Mr.  Rayner,  who 
was  working  on  this  floor,  about  150  feet  from  the  time  clock,  on 
November  5,  1912,  when  the  whistle  blew  at  noon,  started  on  a  run 
from  his  bench  to  the  clock  to  punch  it.  After  proceeding  about  30 
feet,  he  collided  with  Martin  De  Vos,  a  fellow  employe,  whom  he 
could  not  see  because  of  drawers  which  were  piled  up  on  the  floor. 
This  resulted  in  Rayner  fracturing  or  injuring  one  or  more  of  his 
ribs.  There  had  been  no  general  notice  printed  or  posted  of  a  rule 
against  running  to  the  time  clock,  but,  about  a  year  previous  to  the 
accident,  Rayner  had  been  told  by  his  foreman,  Hicks,  not  to  run 
to  the  clock.  There  was  testimony  that  the  rule  against  runnnig 
had  not  been  enforced,  and  no  emi)loye  had  been  discharged  because 
of  doing  so.  An  award  to  claimant,  who  was  left  as  his  dependent, 
was  made  by  a  committee  on  arbitration,  and  upon  review  was  af- 
firmed by  the  Industrial  Accident  Board. 

With  reference  to  the  rule,  the  commission  made  a  finding  that 
such  a  rule  had  not  been  enforced,  and  its  general  violation  had 


90 


APPENDIX. 


been  acquiesced  in  by  the  employer.  There  being  evidence  to  sup- 
port this  finding  of  fact,  by  the  terms  of  the  act  (part  3,  §  12,  Act 
No.  10,  P.  A.,  Extra  Session  1912)  it  becomes  conclusive,  and  as  a 
result  eliminates  the  consideration  of  the  question  as  to  whether  the 
injury  arose  by  reason  of  the  intentional  and  wilful  misconduct  of 
Rayner.  Rumboll  v,  Nuiinerv  Colliery  Co.,  80  L.  T.  42,  i  W.  C. 
C.  28. 

The  judgment  and  decision  of  the  Industrial  Accident  Board  is 
affirmed,  with  costs  against  appellant. - 


NEKOOSA-EDWARDS  PAPER  CO.  v.  INDUSTRIAL 
COMMISSION. 

Supreme  Court  of  Wisconsin,  1913.     141  A''.  W.  1013. 

Timlin,  J.  On  January  23,  191 3,  the  Industrial  Commission 
made  an  award  directing  that  the  respondent  pay  to  Mittie  Smith 
the  sum  of  $2,040  on  account  of  the  death  of  her  husband,  Pat 
Smith,  while  in  the  employment  of  respondent.  March  24,  1913, 
in  an  action  brought  for  that  purpose,  the  circuit  court  for  Dane 
county  set  aside  this  award  on  the  ground  that  the  Industrial  Com- 
mission acted  in  excess  of  its  powers  in  finding  that  the  death  of  Pat 
Smith  was  not  caused  by  wilful  misconduct.^  The  finding  of  the 
commission  on  this  point  was  as  follows :  "The  death  of  Pat  Smith 
was  proximately  caused  by  accident  and  was  not  caused  by  wilful 
misconduct ;  that  at  the  time  of  such  accident  Pat  Smith  was  in  an 
intoxicated  condition  which  proximately  caused  the  accident." 

It  is  quite  possible  for  a  person  to  be  in  an  intoxicated  condi- 
tion which  condition  proximately  caused  the  accident  which  proxi- 
mately caused  the  death  and  yet  not  be  guilty  of  wilful  misconduct. 
The  drinking  of  intoxicating  liquor  is  wilful  in  the  sense  of  inten- 
tional, but  the  mere  fact  of  drinking  is  not  misconduct.  By  section 
1561  any  person  found  in  any  public  place  in  such  a  state  of  intoxi- 
cation as  to  disturb  others,  or  unable  by  reason  of  his  condition  to 
care  for  his  own  safety  or  for  the  safety  of  others,  is  guilty  of  a 
misdemeanor.  This  is  misconduct  and  if  one  intentionally  put  him- 
self in  this  condition  he  might  be  said  to  be  guilty  of  wilful  mis- 
conduct.   But  there  are  many  cases  where  although  the  drinking  is 


''Accord:  Casey  v.  Humphries,  Workmen's  Comp.  Reports  for  1913,  485 
(C  A  Eng.)  ;  McClelland  v.  Fore  River  Co.,  1  Cases  on  Mass.  Work.  Comp. 
Act.  122  (1913)  ;  Belknap  v.  Merry  Elwell  Co.,  Cal.  Indus.  Ace.  Bd.  1913,  cited 
in  Bradbury  on  Workmen's  Compensation  (2nd  Ed.)  Vol.  1,  p.  493. 

'  The  Wisconsin  Act  of  1913,  §  2394-3  has  changed  this  provision,  §  2394-4, 
Act  of  1911,  and  allows  compensation  unless  the  injury  is  intentionally  self- 
inflicted,  -r      11  f        J    • 

Compensation  for  iniuries  due  to  intoxication  is  specifically  refused  in 
California,  Connecticut,  Iowa.  Kansas.  Maryland.  New  York.  Louisiana  Min- 
nesota. Nebraska,  Nevada,  New  Hampshire,  New  Jersey,  Rhode  Island,  and 
West  Virginia. 


NEKOOSA-EDWARDS  PAPER  CO.  V.  INDUSTRIAL  COM.  QI 

intentional  the  intoxication  is  not,  as  for  instance  where  one  by  rea- 
son of  fatigue,  hunger,  sickness,  or  some  abnormal  condition  be- 
comes intoxicated  in  consequence  of  imbibing  a  quantity  of  liquor 
which  ordinarily  would  not  so  affect.  While  intoxication  in  such 
case  to  the  degree  specified  might  be  a  misdemeanor  under  the  stat- 
ute quoted  it  is  not  necessarily  wilful  misconduct  within  the  com- 
pensation act. 'The  intoxication  might  under  such  circumstances 
be  the  proximate  cause  of  an  accident  resulting  in  injury  or  death 
and  yet  not  have  reached  that  degree  specified  in  this  statute  as  in 
case  where  it  produced  mere  drowsiness. 

There  was  evidence  in  the  instant  case  that  deceased  was 
slightly  intoxicated,  that  he  drove  out  of  the  clay  pit  standing  up 
on  his  load,  that  he  was  perfectly  able  to  take  care  of  himself  and 
drive  his  team  when  last  seen  alive.  There  was,  therefore,  room  to 
find  upon  the  evidence  not  only  with  respect  to  the  degree  of  intoxi- 
cation, but  that  there  was  no  intention  or  purpose  to  put  himself  in  a 
dangerous  or  helpless  condition  of  intoxication.  The  Industrial  Com- 
mission has  jurisdiction  to  pass  on  these  very  questions,  and  their 
finding  above  referred  to  does  determine  these  questions.  It  finds 
that  Smith  was  in  an  intoxicated  condition  w^hich  proximately  caused 
the  accident  but  that  the  accident  was  not  caused  by  wilful  mis- 
conduct. This  means  that  he  did  not  wilfully  bring  upon  himself 
such  degree  of  intoxication. 

If  we  w^ere  authorized  to  review  the  evidence  we  might  come  to 
a  different  conclusion.  But  the  statute  is  mandatory  that  the  award 
shall  not  be  set  aside  on  such  ground.  The  Industrial  Board  has 
jurisdiction  to  decide  whether  or  not  the  intoxication  which  caused 
the  death  or  injury  was  wilful,  consequently  it  did  not  act  in  excess 
of  its  powers  in  deciding  the  negative  in  the  instant  case.  There  is 
no  claim  that  the  award  was  procured  by  fraud  and  the  findings  of 
fact  support  the  award.  Hence,  without  reaching  the  interesting 
questions  put  forward  in  the  briefs  of  counsel,  we  reverse  the  judg- 
ment of  the  circuit  court  and  direct  that  the  award  of  the  Industrial 
Commission  be  affirmed. 

Judgment  reversed,  and  the  cause  remanded  to  the  circuit  court 
with  directions  to  afifirm  the  award  of  the  Industrial  Commission.^' 

Barnes,  J.  (Dissenting).  The  plain  unvarnished  tale  in  this 
case  is  that  Smith,  an  habitual  toper,  left  his  work,  w^ent  to^  a  saloon 
some  distance  from  his  place  of  employment,  got  a  partial  "jag"  on, 
started  back  with  a  bottle  of  whisky,  and  got  so  drunk  that  there- 
after, while  he  was  driving  his  team  over  a  smooth  road,  he  fell  off 
the  wagon  and  broke  his  neck.     There  is  no  suggestion  that  the 

==  See  contra,  McGroarty  v.  John  Brown  &  Co.,%  Fraser  809  (Sc.  Ct  Sess. 
1906)  43  Sc.  L.  R.  598;  Trucsdalc  v.  McCarthy,  1  Cases  under  Mass.  Work. 
Comp.  Act  360  (1913).  and  see  Lee  v.  Fidelity  &  Casualty  Co.,  1  Cases  under 
Mass.  Work.  Comp.  Act  316  (1913),  wliere  workman  danced  on  tlie  roof  to 
show  the  foreman  tliat  he  was  not  drunk-;  the  cases  cited  in  note  to  Fnth  v.  S 
S.  Louisianian,  supra,  where,  however,  the  serious  and  wilful  '"";f^«""y<^|^ 
the  deceased  workman  was  not  in  issue,  since  under  the  British  Act  ot  IWO 
such  misconduct  does  not  bar  a  dependent's  right  to  compensation  where  the 
accident  causes  death. 


92  APPENDIX. 

whisky  was  injected  into  him  by  force  or  by  stealth  or  artifice.  He 
bought  it  himself  and  drank  it  alone.  It  was  an  offense  under  the 
law  of  Wisconsin  for  him  to  get  so  drunk  that  he  could  not  provide 
for  his  own  safety  or  the  safety  of  others,  for  which  he  might  have 
been  punished  had  he  survived.  Of  course  if  the  act  of  drinking 
was  accidental  or  automatic  or  a  mere  mechanical ,  exercise  uncon- 
sciously performed,  then  intent  wovild  be  lacking."  But  there  is 
neither  finding  nor  evidence  that  such  was  the  fact.  The  deceased 
was  a  seasoned  veteran,  having  a  penchant  for  getting  drunk,  who 
from  his  long  experience  must  have  known  and  appreciated  his 
capacity.  The  commission  did  not  find  that  the  deceased  got  drunk 
by  accident.  There  was  no  evidence  in  the  case  to  warrant  any  such 
finding.  It  did  not  award  damages  on  any  such  theory.  It  plainly 
says  so  in  its  decision.  After  holding  that  the  claimant  was  drunk 
at  the  time  he  fell  ofif  the  wagon  and  that  the  drunkenness  caused  his 
death,  it  says :  "The  question  we  have  to  decide  is  whether  or  not 
such  intoxication  is  a  defense  against  compensation."  And  in  con- 
clusion the  cornmission  says:  "If  the  Legislature  had  so  intended, 
we  believe  that  it  would  have  specifically  so  provided  in  the  act." 
The  court  holds  that  if  the  claimant  got  drunk  intentionally,  that 
would  be  wilful  misconduct  within  the  meaning  of  the  statute.  The 
commission  held  that  it  would  not  be,  as  I  read  the  findings  and 
decision.  It  is  apparent  that  if  the  commission  construed  the  law  as 
does  the  court,  it  would  have  denied  recovery.  This  court  sustains 
the  conclusion  reached  by  the  commission  in  a  curious  manner.  It 
in  efifect  says  that  the  commission  found  that  there  was  no  wilful 
misconduct.  Under  some  circumstances  drunkenness  would  not  be 
wilful  misconduct.  Ergo  the  commission  must  have  found  that  the 
exculpating  circumstances  existed,  and  its  finding  in  this  behalf  is 
conclusive  on  the  court. 

It  was  not  found  that  the  deceased  got  drunk  on  an  unusually 
small  allowance  of  liquor  because  of  sickness,  hunger,  or  any  other 
reason.  Such  a  finding  would  totally  lack  support  in  the  evidence. 
Where  a  party  accustomed  to  the  use  of  liquor  drinks  it  until  he 
gets  drunk,  the  presumption  is  that  he  intended  to  do  just  what  he 
did  do.  It  was  for  the  claimant  to  show  by  some  facts  or  circum- 
stances that  for  some  reason  or  other  the  deceased  drank  less  liquor 
than  was  ordinarily  necessary  to  produce  stupefaction  in  the  instant 
case.  No  such  evidence  was  produced.  I  think  the  circuit  court  was 
clearly  right  in  holding  that  there  could  be  no  recovery,  and  the 
commission  would  have  reached  the  same  conclusion  had  it  con- 
strued the  law  as  the  circuit  court  did  and  as  this  court  does.  The 
judgment  of  the  court  is  based  on  a  finding  of  fact  which  the  com- 
mission did  not  make,  to  wit,  that  the  deceased  did  not  intend  to  get 
drunk.  What  the  commission  in  reality  concluded  was  that  inten- 
tion was  immaterial  because  an  allowance  might  be  made  for  an 
injury  resulting  from  intentional  intoxication. 

Marshall  and  Vinje  JJ.  concur  in  the  foregoing  opinion  of 
Barnes,  J. 


CLEM   V.    CHALMERS   MOTOR   CO.  93 

CLEM  V.  CHALMERS  MOTOR  CO. 

Supreme  Court  of  Michigan,  1914.     144  N.  W.  848. 

MoORE,  J.  The  first  queslion  is :  Did  Mr.  Clem  receive  a  per- 
sonal injury  arising  out  of  and  in  the  course  of  his  employment? 
And  the  second  question  is :  Was  he  injured  by  reason  of  his  inten- 
tional and  wilful  misconduct?  The  questions  are  so  interwoven  that 
they  may  well  be  discussed  together.  Mr.  Clem,  with  others,  was 
employed  on  a  December  day  constructing  a  flat  roof  on  a  large 
building  only  19  or  20  feet  high.  It  would  add  not  only  to  the  com- 
fort of  these  men  but  to  their  efficiency  as  workers  to  have  them 
about  9  or  10  o'clock  partake  of  a  luncheon,  which  from  the  fact 
that  hot  cofifee  was  served  was  called  a  cofifee  lunch.  The  luncheon 
was  ordered  by  the  foreman  of  the  company.  It  was  prepared  on 
the  premises,  and  when  it  was  ready  the  men  were  directed  bv  the 
subforeman  to  go  and  partake  of  it.  All  of  them  started  to  do  so. 
They  did  not  in  doing  so  leave  the  premises  of  the  appellant.  All 
of  them  but  three  went  down  the  ladder.  Mr.  Clem  went  down  the 
rope  which  projected  over  the  eaves  seven  feet.  If  he  had  kept  hold 
of  the  rope  until  he  reached  the  end  of  it,  if  he  was  a  man  of  ordi- 
nary height  and  his  arms  were  of  the  ordinary  reach,  his  feet  would 
be  within  five  to  seven  feet  of  the  ground.  If,  when  the  call  to  come 
to  lunch  was  made,  Mr.  Clem,  in  responding  to  the  call,  had  inad- 
vertently stepped  into  an  opening  in  the  uncompleted  roof  or  in 
company  with  the  others  had,  in  the  attempt  to  reach  the  ladder,  got 
too  near  the  edge -of  the  roof  and  fallen  and  been  hurt,  would  it  be 
claimed  that  the  injury  did  not  arise  out  of  and  in  the  course  of  his 
employment  ?  The  gjjtting  his  luncheon  under  the  conditions  shown 
was  just  as  much  a  part  of  his  duty  as  the  laying  of  a  board  or  the 
spreading  of  the  roofing  material.  The  injury,  then,  having  arisen 
out  of  and  in  the  course  of  his  employment,  can  it  be  said  that  com- 
pensation should  be  defeated  because  of  his  intentional  and  wilful 
misconduct?  His  primary  object  was  like  that  of  all  the  other  men 
to  get  to  and  partake  of  his  luncheon.  There  is  nothing  to  indicate 
that  he  intended  or  expected  to  be  hurt.  Nearly  all  the  other  men 
went  down  by  the  ladder.  He  went  down  by  a  rope  where,  if  his 
plans  had  carried,  he  would  have  had  to  make  a  drop  of  only  five 
to  seven  feet.  Is  that  such  intentional  and  wilful  misconduct  as  to 
defeat  compensation  under  the  act  ?  There  is  scarcely  a  healthy, 
wide-awake  ten-year-old  boy  who  does  not  frequently  take  a  greater 
chance  and  without  harm.  For  a  man  accustomed  to  physical  toil, 
judged  by  what  is  occurring  daily,  it  can  not  be  said  that  such  .-m 
act  should  be  characterized  as  intentional  and  wilful  misconduct 
within  the  meaning  of  the  statute. 

The  allowance  of  the  claim  is  affirmed.^ 


'Compare  Mitchell  v.  Whittoii.  1907  S.  C.  1267  (Sc.  Ct.  Sess.),  where 
a  farm  servant  in  charge  of  a  horse  and  cart  instead  of  holding  the 
reins  in  his  hands,  tied  them  to  the  breeching  within  easy  reach,  the  horse  sud- 


94  APPENDIX. 

IN  RE  NICKERSON. 

Supreme  Judicial  Court  of  Massachusetts,  1914.     105  N.  E.  604. 

Sheldon,  J.  The  insurer  contends  that  this  injury  happened 
by  reason  of  the  employe's  "sefious  and  wilful  misconduct,"  and 
so  that  no  compensation  can  be  awarded  therefor.  St.  191 1,  c.  751, 
pt.  2,  §  2.  He  was  employed  to  do  general  cleaning,  painting  and 
whitewashing.  Some  of  his  work  had  to  be  done  near  machinery 
and  shafting,  which  when  in  motion  would  involve  danger;  and  he 
had  been  directed  to  do  this  work  during  the  noon  hours,  when  the 
machinery  was  stopped.  At  about  half  past  eleven  o'clock  in  the 
forenoon  of  that  day  on  which  he  was  injured,  the  superintendent, 
in  answer  to  a  question  from  him  about  work  on  a  wall  near  the 
moving  shafting,  said  to  him,  "We  will  do  tlfat  during  the  noon  hour 
when  the  machinery  is  stopped,"  and  told  him  also  that  it  was  about 
half  past  eleven  and  that  he  (the  superintendent)  would  find  out 
the  correct  time  and  report  it  to  him.  The  employe  went  to  work  at 
this  place  about  five  minutes  later,  expecting  that  the  machinery 
would  be  stopped  at  noon,  when  he  would  continue  the  work  with 
the  machinery  at  rest.  His  clothing  was  caught  by  a  projection  on 
the  collar  of  the  shafting,  his  body  was  drawn  around  the  shafting, 
and  he  received  injuries  which  caused  his  death. 

"Serious  and  wilful  misconduct"  is  a  very  different  thing  from 
negligence,  or  even  from  gross  negligence.  Burns  Case,  218  Mass. 
8,  105  N.  E.  601;  Johnson  v.  Marshall,  Sons  &  Co.  (1906)  A.  C. 
409.  It  resembles  closely  the  wanton  or  reckless  misconduct  which 
will  render  one  liable  to  a  trespasser  or  a  bare  licensee.  See  Romana 
V.  Boston  Elevated  Raikvay,  105  N.  E.  598,  and  the  cases  there  cited 
on  598.  Its  existence  under  any  particular  circumstances  is  usually 
a  question  of  fact.  Leishman  v.  Dixon,  3  B.  W.  C.  C.  560;  George 
V.  Glasgozv  Coal  Co.  (1909)  A.  C.  123;  Bist  v.  London  &  South- 
zvestern  Raikvay,  96  L.  T.  750. 

Here  the  Industrial  Accident  Board  has  found,  in  accordance 
with  the  report  of  the  Arbitration  Committee,  that  this  was  not 
"serious  and  wilful  misconduct" ;  that  "the  shafting  and  machinery 


denly  bolting,  he  was  unable  to  reach  the  reins  in  time  to  stop  it,  and  he  was 
thrown  out  and  killed ;  and  Cochran  v.  Contractors'  Mutual,  1  Cases  under 
Mass.  Work.  Comp.  Act  93  (1913),  workman  did  not  put  up  guy  ropes,  though 
warned  by  foreman  that  it  was  dangerous  not  to  do  so. 

The  general  tendency  of  the  Michigan  Industrial  Accident  Board  is  to 
hold  if  at  all  possible  that  the  conduct  of  the  workman  did  not  amount  to 
serious  and  wilful  misconduct,  see  Coble  v.  Continental  Motor  Car  Co.,  Dr. 
Denton  &c.  Co. — cited  in  Bradbury  on  Workmen's  Compensation,  2nd  Ed., 
Vol.  1,  pp.  491-492. 

The  mere  fact  that  the  particular  workman  did  not  appreciate  the  grav- 
ity of  the  risk  is  immaterial,  if  it  was  obvious  to  a  reasonable  man,  Dobson  v. 
Collieries  Co.,  note  3  to  Bist  v.  London  etc.  R.  Co.,  ante,  p.  87;  as  to  danger 
obvious  to  adults  but  not  to  minors  of  the  claimant's  age,  see  Casey  v.  Hum- 
phries, Workmen's  Compensation  Reports  for  1913,  p.  485,  per  Cozens-Hardy, 
M.  R.,  p.  488. 


HILL  V.   liKGG.  95 

were  about  to  stop  at  any  moment,  in  the  mind  of  the  employe,  when 
he  could  continue  to  work  with  absolute  safety.  His  decision  to  do 
some  whitewashing  during  this  very  brief  interval  seems  more  like 
a  sudden  thought  than  a  wilful  act.  It  seems  that  it  should  fairly 
be  regarded  as  a  minor  transgression,  at  most,  from  his  standpoint, 
and  not  as  serious  and  wilful  misconduct." 

Unless  this  finding  is  shown  to  be  unwarranted  upon  the  evi- 
dence it  now  is  conclusive.  Donovan's  Case,  217  ]^Iass.  76;  Bent- 
ley's  Case,  217  Mass.  79;  Diaa's  Case,  217  Mass.  36.  We  can  not 
say  that  it  was  unwarranted.  The  fact  that  the  injury  was  occa- 
sioned by  the  employe's  disobedience  to  an  order  is  not  decisive 
against  him.  To  have  that  effect,  the  disobedience  must  have  been 
wilful,  or,  as  was  said  by  Lord  Loreburn,  in  Jolnison  v.  Marshall. 
Sons  &  Co.,  Ltd.,  (1906)  A.  C.  409,  411,  "deliberate,  not  merely  a 
thoughtless  act  on  the  spur  of  the  moment." 

This  case  comes  well  within  the  rule  of  the  decisions  which 
have  been  cited.    The  decree  of  the  superior  court  must  be  affirmed. 

So  ordered. 


CHAPTER  III, 

Certain  Employment  Excluded.^ 


SECTION  1. 
"Casual." 

I 

HILL  V.  BEGG. 

Court  of  Appeal,  1908.     Law  Reports  1908,  2  A'.  B.  802. 

The  learned  County  Court  Judge  held  that  there  was  sufficient 
continuity  about  the  work  to  take  it  out  of  the  definition  of  casual 
employment.  He  accordingly  made  an  award  in  favour  of  the  ap- 
plicant.    Mr.  Begg  appealed. 

Cozens-Hardy,  M.  R.     The  question  raised  in  this  appeal  is 


'  Section  13  of  the  British  Workmen's  Compensation  Act  of  1906  pro- 
vides that  the  term  "workman"  does  not  inckide  "inter  aUa"  a  person  whose 
employment  is  of  a  casual  nature  and  who  is  employed  otlicrwise  than  for  the 
purposes  of  the  employe's  regular  trade  or  business.  These  identical  words 
are  used  in  the  Rhode  Island  Act.  In  California  the  exclusion  is  of  persons 
whose  emploj^ment  is  both  casual  and  not  in  tiie  usual  course  of  the  employe's 
trade,  business,  etc.,  of  the  employer.  Very  similar  language  is  used  in  Iowa, 
while  in  Connecticut,  Minnesota,  Nebraska.  New  Jersey  and  West  Virgmia, 
casual  employment  or  employes  are  excluded  in  somewhat  varying  terms  as 
to  a  suggested  difference  between  a  "casual  emplo>Tnent"  and  an  employment 
"of  a  casual  nature"  see  Ga\nor's  Case,  2\7  Mass.  86  (1914).  In  Ilhnois, 
Michigan,  Ohio,  Texas,  and  Wisconsin,  and  in  the  Massachusetts  Act  of  1911, 
the  term  employe  is  defined  as  including  "all  persons,"  etc.,  except  one  whose 


96  APPENDIX. 

whether  a  man  who  was  employed  by  the  present  appellant  to  clean 
windows  of  his  private  house,  not  by  virtue  of  any  contract  entitling 
either  the  appellant  to  claim  the  man's  services  or  the  man  to  claim 
damages  if  not  employed,  is  a  workman  entitled  to  compensation 
within  the  meaning  of  the  Act  of  1906.  The  evidence  shows  that 
for  some  two  years  when  the  windows  required  cleaning  a  postcard 
was  sent  to  the  man,  who  did  odd  jobs  of  this  nature,  and  if  he  came 
he  was  paid  6s.  6d.  a  day  for  wdiat  he  did.  Sect.  13  of  the  Act  con- 
tains a  definition  of  "workman,"  which  so  far  as  is  material  is  as 
follows  :  "Workman  does  not  include  a  person  whose  employment  is 
of  a  casual  nature,  and  who  is  employed  otherwise  than  for  the  pur- 
poses of  the  employer's  trade  or  business."  The  appellant  is  a  mem- 
ber of  the  Stock  Exchange,  and  it  is  of  course  clear  that  the  man 
was  not  employed  for  the  purposes  of  his  trade  or  business.  I  think 
the  man's  employment  was  of  a  casual  nature.  There  was  no  en- 
gagement that  he  should  be  employed.  No  complaint  could  have 
been  made  if  any  other  person  had  been  employed.  It  was  uncer- 
tain when  any  person  would  have  been  employed,  and  indeed  it  is 
not  easy  to  frame  any  definition  of  "employment  of  a  casual  nature" 
which  would  not  cover  this  case.  A  broad  distinction  is  taken  in  the 
Act.  If  a  man  for  the  purposes  of  his  trade  or  business  employs 
another,  it  matters  not  that  the  employment  is  of  a  casual  nature, 
such  as,  for  example,  that  of  a  dock  laborer,  and  the  man  so  em- 
ployed is  a  workman  within  the  meaning  of  the  Act,  but  an  entirely 
dififerent  principle  is  applicable  to  the  case  of  what,  for  the  sake  of 
distinction,  I  may  call  domestic  engagements.  I  am  not  prepared  to 
extend  the  burdens  of  the  Act  to  householders  who  simply  call  in  a 
man,  not  part  of  their  regular  establishment,  to  do  a  particular  job 
as  and  when  necessity  arises.  On  these  grounds  I  think  the  learned 
Judge  was  wrong  in  the  view  which  he  took,  and  that  the  appeal 
must  be  allowed. 

Buckley,  L.  J.  A  lady  was  in  the  habit,  whenever  her  win- 
dows required  cleaning,  of  sending  for  a  certain  man  named  Hill 
to  clean  them.  There  was  no  agreement  of  permanent  or  periodical 
employment,  but,  in  fact,  her  practice  was  to  send  for  the  same  man 
whenever  the  work  required  to  be  done.  In  that  which  follows  1 
am  dealing  with  a  case  of  practice,  but  not  of  contract.  The  ques- 
tion is  whether  this  man  was  a  workman  employed  by  the  lady 
within  the  Workmen's  Compensation  Act,  1906. 

I  pause  here  to  point  out  that  the  words  are  not  "who  is  casu- 
ally employed,"  but  "whose  employment  is  of  a  casual  nature."  I 
have  to  investigate  what  is  the  character  of  the  employment.  Is  the 
employment  one  which  is  in  its  nature  casual  ?  To  take  an  analogy 
or  illustration  from  a  dififerent  subject,  say,  land.     The  question  is 


employment  is  but  casual  or  is  not  in  the  regular  course  of  the  trade,  busi- 
ness, etc.,  "of  his  employer."  (The  Massachusetts  Act  as  amended  in  1914 
eliminates  the  words  "is  but  casual  or.")  The  use  of  the  disjunctive  "or"  in 
place  of  the  conjunctive  "and"  leads  to  a  very  radical  diflference  in  effect,  see 
Gaynor's  Case,  217  Mass.  86  (1914). 


KNIGHT  V.   BUCKNILL.  97 

uhat  is  the  nature  or  quality  of  the  land  (is  it,  for  instance,  buiUhng 
land  or  agricultural  land),  not  what  estate  is  held  in  that  land.  Sup- 
pose that  a  host,  when  from  time  to  time  he  entertains  his  friends 
at  dinner  or  his  wife  gives  a  reception  or  a  dance,  has  been  in  the 
habit  for  man}'^  years  of  employing  the  same  men  to  come  in  and 
wait  at  his  table  or  assist  at  the  reception,  it  may  be  said  that  their 
employment  is  regular,  but  the  employment  is  of  a  casual  nature. 
It  depends  upon  the  whim  or  the  hospitable  instincts  or  the  social 
obligations  of  the  host — whether  he  gives  any,  and  how  many,  din- 
ner parties  or  receptions,  and  the  number  of  men  he  will  want  will 
vary  with  the  number  of  his  guests.  In  such  a  case  the  w^aiters  may 
not  incorrectly  be  said  to  be  regularly  employed  in  an  employment 
of  a  casual  nature.  The  employment  in  the  present  case  was.  I 
think,  of  a  casual  nature.  The  lady  might  have  gone  abroad  for 
some  months  or  might  have  let  her  house,  and  in  either  of  these 
cases  the  employment  would,  or  might  have,  ceased.  If  she  re- 
mained at  home  there  was,  no  doubt,  a  well-founded  expectation  of 
employment,  which  would  normally  have  resulted  in  employment  at 
intervals  more  or  less  regular,  but  the  employment  remained  of  a 
casual  nature.  I  think  the  Act  distinctly  intended  that  where  the 
employment  was  not  in  a  trade  or  business  the  liability  of  the  em- 
ployer should  be  limited  to  the  case  of  servants  whose  employment 
was  not  casual,  but  stable.  This  employment  was  not  of  that  kind, 
and  the  case  is,  in  my  opinion,  not  within  the  Act  of  Parliament.  It 
results  that  the  appeal  must  be  allowed  and  the  application  dismissed 
with  costs. ^ 

Kennedy,  L.  Jf,  agreed. 

Appeal  allowed. 


KNIGHT  V.  BUCKNILL. 

Court  of  Appeal  of  England,  1913.     6  Buttcrzvorth's  Workwcii's  Com- 
pensation Cases  160. 

An  appeal  by  the  "workman"  from  an  award  of  His  Honour 
Judge  Gye.  of  the  County  Court  of  Southampton. 

Knight,  a  jobbing  gardener,  was  employed  to  cut  down  and  \op 
some  trees  in  the  grounds  of  a  large  private  house.  Nothing  ap- 
pears to  have  been  said  as  to  how  long  he  was  to  be  cmjiloyed  ;  the 
only  thing  that  was  definitely  arranged  was  that  he  should  be  paid 
T,s.  6d.  per  day.  The  County  Court  Judge  found  that  the  employ- 
ment was  of  a  casual  nature. 

The  "workman"  appealed. 


"■  Aliter  in  those  states.  Illinois,  Michigan.  Oliio,  Texas  and  Wisconsin, 
where  an  emplojmient  is  excluded  if  it  be  either  casual  or  not  in  the  regular 
course  of  his  employer's  business,  trade,  etc.,  see  Gaynor's  Case,  217  Mass.  86 
(1914). 

"-Accord:  Rcnnie  v.  Reld.  1908  S.  C.  1051  (Sc.  Ct.  Sess.).  45  S.  L.  R.  814. 
1  B.  W.  C.  C.  324.  very  similar  facts;  Hubbe  v.  Lynch,  36  N.  J.  L.  J.  87  (C.  P. 
Essex  Co.  N.  J.  1913),  man  called  for  a  few  hours  to  move  furniture. 


98  APPENDIX. 

Cozens-Hardy,  M.  R.  In  this  case  the  question  is  whether 
the  County  Court  Judge  was  wrong  in  holding  that  the  man  who 
was  injured  was  not  a  workman  within  the  definition  in  the  Act  of 
Parliament.  The  point  of  the  definition  which  is  contained  in  Sect. 
13  is  that  "workman  does  not  include  *  *  *  g^  person  whose 
employment  is  of  a  casual  nature  and  who  is  employed  otherwise 
than  for  the  purposes  of  the  employer's  trade  or  business." 

No  question  in  the  present  case  arises  as  to  any  trade  or  busi- 
ness. Therefore,  we  have  only  to  decide  whether  the  man's  em- 
ployment was  of  a  casual  nature  or  not.  The  man  was  a  jobbing 
gardener.  That  is  his  own  description  of  himself.  He  was  engaged 
by  Col.  Bucknill  in  the  winter  time.  It  is  in  the  winter  time  when 
trees  requiring  to  be  felled  are  usually  cut  down,  and  this  is  the  time 
when  a  jobbing  gardener  has  not  got  much  to  do.  So  he  was  called 
in  by  Col.  Bucknill  to  do  the  job.  He  was  not  paid  a  weekly  wage, 
but  at  the  rate  of  3.?.  6d.  a  day.  The  fact  that  he  was  engaged  by 
the  day  is  not  conclusive,  but  it  can  not  be  disregarded  in  deciding 
whether  his  employment  was  casual  or  not.  On  two  occasions  he 
was  engaged  to  cut  trees,  and  in  the  interval  he  was  employed  for 
levelling  the  lawn.  It  w-as  on  the  second  occasion  when  he  was  cut- 
ting down  trees  that  he  was  injured.  That  was  close  upon  five 
weeks  after  he  was  first  engaged.  During  that  time  he  was  em- 
ployed every  day  except  when  the  weather  was  so  bad  that  he  could 
not  work,  and  he  received  his  wages,  I  presume,  when  the  regular 
stafif  received  theirs  on  the  Saturday.  In  these  circumstances  the 
Judge  held  that  the  applicant  was  not  a  workman  within  the  Act, 
because  his  employment  was  of  a  casual  nature.  Is  it  possible  for 
us  to  say  that  the  Judge  had  misdirected  himself  and  there  is  no  evi- 
dence on  which  his  decision  could  be  supported?  I  entirely  dissent 
from  that  view.  I  am  quite  unable  to  give  a  general  definition  of 
casual  as  opposed  to  regular  employment  which  would  meet  every 
case.  I  do  not  even  think  it  desirable  to  define  within  precise  limits 
employmeut  which  is  casual  and  employment  which  is  not.  I  prefer 
rather  in  a  case  like  this  to  adhere  to  the  illustration  given  during 
the  argument.  A  country  gentleman  has  what  I  may  call  his  regular 
establishment  to  do  his  ordinary  work  in  the  garden,  stables,  and  so 
forth,  but  at  certain  times  in  the  year  and  for  certain  limited  pur- 
poses he  gets  in  persons  not  on  his  establishment  to  help — persons 
who  may  be  got  rid  of  without  notice,  and  who  are  under  no  obliga- 
tion to  the  emplover  to  come  and  work.  An  example  of  this  oc- 
curred in  Hill  V.  Bcgg,  (1908)  2  K.  B.  802,  i  B.  W.  C.  C.  320.  It 
seems  to  me  that  persons  such  as  these  are  persons  "whose  employ- 
ment is  of  a  casual  nature."  in  the  language  of  the  Act  as  inter- 
preted by  this  Court  in  Hill  v.  Bccjg  (supra)  and  Dewhurst  v. 
Mather,  (1908)  2  K.  B.  754,  i  B.  W.  C.  C.  328,  and  by  the  Irish 
Court  of  Appeal  in  M'Carthy  v.  Norcott  (1908),  43  Tr.  L.  T.  17.  2 
B.  W.  C.  C.  279.^   It  also  seems  to  me  clear,  when  the  question  is 


'  In  McCarthy  v.  Norcott,  cited  in  principal  case,  a  carpenter  was  em- 
ployed to  do  some  repairs  in  defendant's  private  house.     While  the  repairs 


KNIGHT  V.   DUCKNILL.  99 

subjected  to  that  test,  that  this  is  a  case  in  which  the  employment 
was  of  a  casual  nature,  or  at  least  that  it  was  competent  for  the 
learned  Judge  to  so  hold. 

I  think  that  this  appeal  must  be  dismissed  with  costs. 

Buckley,  L.  J.  Not  only  w'ere  there  materials  in  this  case  on 
which  the  County  Court  Judge  could  arrive  at  the  conclusion  that 
he  did,  but  I  think  that  on  the  evidence  any  other  conclusion  would 
have  been  wrong.  The  question  is  what  is  meant  by  the  words  in 
Sect.  13  of  the  Act,  "a  person  whose  employment  is  of  a  casual  na- 
ture." I  notice  that  Fitzgibbon,  L.  J.,  in  M'Carthy  v.  Norcott, 
(supra),  has  endeavored  to  define  casual  by  seeking  to  discover  its 
opposkes  and  he  says,  "I  accept  this  definition  except  that  I  rather 
hesitate  at  the  word  'regular.'  If  the  regular  means  'periodical,'  it 
is  a  mere  repetition  of  the  succeeding  word,  and  if  it  means  'perma- 
nent,' it  is  again  a  repetition  of  one  of  the  other  words."  It  seems 
to  me  to  be  perfectly  possible  for  a  man  to  be  employed  in  regular 
work  of  a  casual  nature,  and  there  is  a  good  example  of  that  in 
Hill  V.  Begg  (supra).  Suppose  that  a  host,  when  from  time  to  time 
he  entertains  his  friends  at  dinner  or  his  wife  gives  a  reception  or  a 
dance,  has  been  in  the  habit  for  many  years  of  employing  the  same 
men  to  come  in  and  wait  at  his  table  or  assist  at  the  reception,  it  may 
be  said  that  their  employment  is  regular.  But  the  employment  is  of 
a  casual  nature.  Another  instance  is  when  a  man  who  goes  in  for 
pheasant  shooting,  engages  the  same  men  always  for  his  shoots  as 
beaters.  In  a  sense  their  employment  is  regular,  but  it  is  also  casual 
each  time  he  asks  them  to  come.  So  for  my  part  I  should  disregard 
the  w^ord  regular  and  find  the  meaning  of  casual  by  contrasting  it 
with  permanent  and  periodical.  In  Hill  v.  Begg  (supra),  I  used  the 
word  '-'stable"  as  contrasted  with  "unstable,"  meaning,  I  suppose,  to 
contrast  a  casual  employment  with  something  in  a  stable  condition 
which  was  likely  to  remain.  Now  what  I  have  to  consider  in  this 
case  is  not  whether  this  workman  was  casually  employed,  but  whether 
this  employment  was  of  a  casual  nature.  What  happened  here  was 
that  Col.  Bucknill  sent  for  a  man  to  fell  two  or  three  trees  on  his 
lawn.  Subsequently  there  was  a  suggestion  of  felling  some  other 
trees,  and  in  this  interval  the  gardener  was  short  of  a  hand  and 
asked  for  help  in  the  garden.  There  was  no  permanent  employment 
at  all,  and  nothing  definite  about  the  man's  engagement,  except  that 
he  was  to  be  paid  3^.  6d.  a  day.  I  can  find  nothing  in  the  facts  from 
which  it  can  be  inferred  that  at  the  end  of  any  day  or  week,  the 
employer  could  have  said  to  this  man  that  he  was  to  come  again 
next  day,  or  that  the  workman  could  have  compelled  the  employer 
to  give  him  notice  before  discharging  him.  There  was  no  sta])ility 
in  the  arrangement.  The  man  would  come  when  he  liked  and  go 
when  he  liked,  and  the  employment  was  entirely  of  a  casual  nature. 


were  in  progress  he  agreed  that  when  they  were  finished  he  would  cut  down 
some  trees  on  the  grounds,  the  pay  to  he  5  shilhngs  a  day,  the  same  as  for  the 
repairs.  After  working  three  days,  he  was  killed  on  the  fourth,  it  ^^'^s  held 
that  his  employment  was  of  a  casual  nature,  see  also,  Checvcr's  Case,  106  A. 
E.  861  (Mass. '1914). 


lOO  APPENDIX. 

He  was  employed  for  a  special  job.  In  my  view  there  were  facts 
before  the  County  Court  Judge  to  support  his  finding  that  the  man's 
employment  was  of  a  casual  nature. 

Hamilton,  L.  J.  I  agree.  There  is  a  state  of  facts  in  which 
it  would  be  impossible  for  a  reasonable  tribunal  to  say  that  work 
was  casual,  and  equally  there  is  a  state  of  facts  in  which  it  would 
be  impossible  for  a  reasonable  tribunal  to  say  that  it  was  permanent ; 
but  I  am  unable  to  formulate  the  test  which  would  determine  the 
boundary  between  these  two  conditions  as  a  matter  of  law,  and  I 
think  it  may  be  inferred  that  when  the  state  of  facts  is  midway  be- 
tween these  two  states,  so  that  the  question  is  reasonably  debatable, 
it  must  be  for  the  County  Court  Judge  to  decide. 

I  offer  no  opinion  as  to  the  merits  of  the  conclusion  of  facts, 
but  this  case  is  one  in  which  I  feel  it  is  impossible  to  say  that  the 
award  was  arrived  at  by  error  of  law.  The  appeal  must  be  dis- 
missed. 

Appeal  dismissed. 


SABFXLA  V.  BRAZn^EIRO. 

Supreme  Court  of  New  Jersey,  1914.    91  Atl.  1032. 

Bergen,  J.  This  cause  was  submitted  on  such  briefs  as  should 
be  filed  within  the  time  prescribed  by  the  rules  of  this  court,  and  we 
have  not  been  favored  with  any  on  behalf  of  the  defendant  in  cer- 
tiorari. A  paper  was  filed  by  a  person  who  claims  to  be  an  attorney 
at  law,  but  he  appears  to  be  ignorant  of  the  rule  observed  in  this 
court  that  only  those  who  have  been  admitted  as  counselors  of  this 
court  are  permitted  to  appear  and  argue  cases  before  it.  A  brief 
filed  in  this  court  by  one  who  has  not  been  admitted  to  the  degree 
of  counselor  at  law  will  not  be  considered.  Hazard  v.  Phoenix  Co., 
78  N.  J.  Eq.  568,  80  Atl.  456. 

This  dispute  requires  the  determination  of  two  questions  raised 
under  the  statute  commonly  called  the  Employer's  Liability  Act 
(P.  L.  191 1,  p.  134)  :  (a)  Was  the  contract  of  employment  made  in 
New  Jersey?  (b)  Was  the  employment  of  the  deceased  casual?' 
The  trial  court  found  that  the  contract  was  made  in  this  state,  and 
that  the  employment  was  not  casual,  and  awarded  to  the  next  of 
kin  compensation  as  provided  by  the  statute.  We  think  there  was 
evidence  to  sustain  the  finding  that  the  contract  was  entered  into 
when  the  deceased  was  put  to  work  and  not  until  then,  and,  as  he 
was  really  not  engaged  until  after  he  reached  Jersey  City,  the  con- 
tract was  made  in  this  state.  As  to  the  other  point,  the  evidence 
shows  that  deceased  was  justified  in  the  expectation  that  the  em- 
ployment would  continue  at  least  until  the  ship  was  loaded  or  so 
long  as  his  services  were  required  for  that  purpose.^     While  this 

^The  language  of  the  Act,  Sect.  Ill  23,  is  "exclusive  of  casual  employ- 
ments." 

^  So  work  is  not  casual  merely  because  the  employment  is  for  an  indefi- 
nite period,  Shacffcr  v.  GrottoJa,  85  N.  J.  L.  444  (1914),  and  In  re  McAuliffc, 


DEWHURST  V.    MATHER.  lOI 

class  of  work  was  not  constant,  depending  upon  there  being  a  ship 
of  the  prosecutor  in  port,  it  appears  that  the  deceased  was  frequently 
called  upon  by  the  prosecutors  to  serve  them  in  this  particular  char- 
acter of  work,  being  one  of  a  class  of  stevedores  ready  to  respond 
when  called.^  We  think  this  supports  the  finding  that  the  employ- 
ment was  not  "casual"  within  the  meaning  of  the  word  as  expressed 
in  the  statute.  The  ordinary  meaning  of  the  word  "casual"  is  some- 
thing which  happens  by  chance,  and  an  employment  is  not  casual — 
that  is,  arising  through  accident  or  chance — where  one  is  employed 
to  do  a  particular  part  of  a  service  recurring  somewhat  regularly 
with  the  fair  expectation  of  its  continuance  for  a  reasonable  period. 
In  our  opinion,  the  trial  court  correctly  disposed  of  the  ques- 
tions argued  on  the  return  of  the  writ  allowed  in  this  cause,  and  the 
judgment  is  therefore  affirmed,  with  costs. 


DEWHURST  V.  MATHER. 
Court  of  Appeal,  England,  1908.     L.  R.  1908,  2  K.  B.  754. 

Appeal  from  an  award  of  the  Preston  County  Court  judge  un- 
der the  Workmen's  Compensation  Act,  1906. 

The  applicant  was  a  charwoman.  On  Tuesday,  October  22, 
1907,  the  applicant  was  engaged  at  the  house  of  the  respondents, 
Mr.  and  Mrs.  Mather,  washing  clothes,  and  when  cleaning  up  the 
cellar  steps  her  left  thumb  "was  pricked  by  a  pin.  Blood  poisoning 
set  in  as  the  result  t)f  the  prick,  and  the  applicant  lost  the  use  of  her 
left  hand  in  consequence  and  was  permanently  incapacitated.  The 
applicant  was  employe^l  by  the  respondents  as  charwoman  on  every 
Friday  and  every  other  Tuesday,  and  at  the  date  of  the  accident  she 
had  been  so  emj^loycd  for  eighteen  months.  On  other  days  she 
washed  and  cleaned  for  other  people.  The  respondents  disputed 
liability,  upon  the  ground  that  the  applicant  was  a  casual  emj^loye 
only.  The  applicant  stated  in  her  evidence  that  when  she  was  not 
able  to  go  to  Mrs.  Mather  she  let  her  know.  That  was  when  she 
was  poorly.  If  she  had  her  health  she  went  regularly  every  Friday 
and  every  other  Tuesday  without  being  told  to  go  each  time.     If 


Bulletin  of  Ind.  Com.  of  Oliio,  Vol.  1,  No.  21,  p.  145  (1914).  as  during  tlie 
construction  of  a  particular  liuilding,  Scott  v.  Payne  Bros.,  85  X.  J.  L.  446 
(1914),  or  on  trial,  Mueller  v.  Oellcers  Co.,  36  N.  J.  L.  J.  117  (C.  P.  of  Kssex 
Co.,  N.  J.,  1913),  and  see  Clements  v.  Columbus  Saw  Mill,  Bulletin  Ohio  Ind. 
Comm.,  Vol.  1,  No.  21,  p.  161.  The  ruling  of  the  Massachusetts  Board  in 
Grogan's  Case,  1  Cases  under  Workmen's  Compensation  Act  231  (1913), 
accord,  was  probably  overruled  by  Gaynor's  Case,  infra,  note  3,  and  Cheevcr's 
Case,  106  N.  E.  861  (Mass.  1914). 

'Contra:  Gaynor's  Case,  217  Mass.  86  (1914),  which,  construing  Part  V, 
§  2,  excluding  from  definition  of  employe's  covered  "those  whose  employment 
is  but  casual,"  held  that  a  waiter  taken  on  for  an  afternoon  by  a'  caterer  to 
serve  a  banquet  was  a  casual  employe,  though  the  custom  of  the  catering  busi- 
ness was  to  serve  banquets  by  waiters  so  engaged  and  the  waiters  served  first 
one  caterer  and  then  another. 


I02  APPENDIX. 

Other  people  had  asked  her  to  wash  for  them  on  the  days  on  which 
she  was  engaged  to  Mrs.  Mather  she  would  not  have  gone. 

The  county  court  judge  found  that  the  applicant  was  in  the 
regular  employment  of  the  respondents  on  every  Friday  and  every 
other  Tuesday,  and  that  the  accident  occurred  in  the  course  of  that 
employment,  and  he  awarded  the  applicant  /S.  a  week. 

The  respondents  appealed. 

Cozens-Hardy,  M.  R.  I  think  this  is  a  reasonably  plain  case.  The 
learned  county  court  judge  has  held,  first  of  all,  that  a  wife  who  en- 
gages a  person  of  this  kind  as  a  washerwoman  does  so  as  agent  for 
her  husband.  It  is  quite  clear  that  in  a  matter  of  that  kind,  although 
the  actual  engagement  is  made  by  the  wife,  it  is  made  by  her  as 
agent  for  the  husband,  and  the  husband  is  liable.  But  then  it  is  said 
that  this  washerwoman  was  not  engaged  under  "a  contract  of  serv- 
ice" within  s.  13  of  the  Act.  The  evidence  shows  that  she  went  on 
Friday  every  week  and  on  alternate  Tuesdays  regularly,  without 
any  further  instructions,  and  she  went  on  other  days  of  the  week 
to  other  persons.  Under  these  circumstances  the  learned  judge  has 
found,  and  I  do  not  see  how  he  could  have  failed  to  find,  that  there 
was  a  contract  of  service  of  a  periodical  nature.  It  seems  to  me  to 
come  exactly  within  the  language  of  the  First  Schedule,  clause  i, 
sub-s.  2  (b),  which  contains  these  words  relating  to  the  earnings  of 
a  workman :  "Where  the  workman  had  entered  into  concurrent  con- 
tracts of  service  with  two  or  more  employers,  under  which  he 
worked  at  one  time  for  one  such  employer  and  at  another  time  for 
another  such  employer,  his  average  weekly  earnings  shall  be  com- 
puted as  if  his  earnings  under  all  such  contracts  were  earnings  in 
the  employment  of  the  employer  for  whom  he  was  working  at  the 
time  of  the  accident."  The  Act  obviously  contemplates  a  case  in 
which  the  engagement  is  not  for  the  whole  time,  but  for  a  portion  of 
time  with  one  employer  and  for  a  portion  of  time  with  another  em- 
ployer. That  being  so  it  seems  to  me  reasonably  plain  that  this  is 
not,  to  use  the  language  of  s.  13  of  the  Act,  an  employment  of  "a 
casual  nature."  It  was  an  employment  of  a  regular  nature.  It  was 
for  definite  periods,  perfectly  well  known  to  both  employer  and 
employe.  Then  it  is  said  that  this  Court,  in  the  recent  case  of  Hill 
V.  Bcgg,  L.  R.  1908,  2  K.  B.  802,  decided  something  which  ought  to 
govern  this  case.  I  was  a  party  to  that  decision,  and  I  do  not  desire 
to  qualify  anything  I  there  said ;  but  it  seems  to  me  to  have  nothing 
whatever  to  do  with  the  present  case.  In  that  case  there  was  no 
agreement  between  the  parties  for  either  permanent  or  periodical 
employment.  Here  the  fact  was  found  by  the  learned  county  court 
judge  that  there  was  an  agreement  for  periodical  employment.  That 
being  so,  it  is  not  an  employment  of  a  casual  nature,  and  the  decision 
of  tlie  learned  county  court  judge  was  risrht.  The  appeal  therefore 
fails  and  must  be  dismissed. 

Farwell,  L.  J.    I  agree. 

Kennedy,  L.  J.  I  am  of  the  same  opinion.  It  appears  to  me 
chat  there  was  ample  evidence  to  justify  the  finding  of  the  county 
court  judge  that  the  applicant  was  employed  by  the  respondents 


JOIIXSTOX  v.   MOXASTEREV'AN  GENERAL  STORE  CO.  I03 

under  an  arrangement  which  provided  that  the  employment,  al- 
though periodical,  was  to  be  regular— that,  to  use  the  phrase  of 
Buckley  L.  J.  in  Hill  v.  Begg,  supra,  the  employment,  as  well  as  being 
periodical,  was  stable;  and  if  that  is  so,  then  this  was  not  employ- 
ment of  a  casual  nature  within  the  meaning  of  the  Act. 

Appeal  dismissed. 


JOHNSTON  V.   MONASTEREVAN  GENERAL  STORE  CO. 

Court  of  Appeal,  Ireland,  1908.    42  Irish  Law  Times  268. 

An  appeal  by  the  employers  from  an  award  of  His  Honour 
Jud*ge  Barry,  County  Court  Judge  of  Kildare.  The  following  state- 
ment of  facts  appeared  on  the  learned  Judge's  note :  The  applicant, 
the  widow  of  Patrick  Johnston,  deceased,  with  two  children  and  five 
step-children  of  the  deceased,  lived  in  Monasterevan.  Patrick  Johns- 
ton was  killed  on  May  i6  by  falling  from  a  ladder  while  mending 
slates  on  the  roof  of  the  respondents'  premises.  The  manageress 
in  the  respondents'  employment  employed  a  slater  named  White  to 
repair  the  roof.  Later  on  in  the  day  White  said  to  her  it  would  be 
better  to  get  a  man  to  assist  him.  She  sent  the  yardman  to  get  some 
man  at  the  corner.  Johnston  came  in.  She  asked  him  how  much 
would  he  want  for  the  remainder  of  the  day.  He  said  2s.,  and  she 
agreed  to  that,  and  he  went  to  work.  The  next  she  heard  was  about 
three  o'clock  when  she  was  told  that  he  had  fallen  and  was  killed. 
She  merely  employed-him  for  the  half  day.  It  was  her  duty  to  have 
the  premises  in  proper  condition  for  the  carrying  on  of  the  business. 
The  shop  assistants  live  jin  che  dwelling  part  of  the  house,  which  is 
over  the  shop. 

Counsel  for  the  respondents  asked  His  Honor  to  note,  as  a 
matter  of  law,  that  Patrick  Johnston,  at  the  time  of  his  death,  was  a 
person  whose  employment  was  of  a  casual  nature,  and  who  was 
employed  otherwise  than  for  the  purpose  of  the  employers'  trade  or 
business. 

His  Honor  held,  as  a  matter  of  fact,  that  the  employment  of 
deceased  was  of  a  casual  nature,  and  also  as  a  fact  that  it  was  for  the 
purpose  of  the  emi)loyers'  trade  or  business  that  he  was  so  employed. 
His  Honor  awarded  the  widow  £150. 

The  employers  appealed. 

FiTZGiBBON,  L.  J.  The  intention  seems  to  be  that  where  a  per- 
manent employe  would  have  a  claim  for  something  done  for  the 
purposes  of  the  business,  then  a  person  casually  emjjloyed  to  do  the 
same  thing  should  get  compensation.  • 

Sir  S.  Walker,  Bart.,  L.  C.  We  are  all  of  o|Mnion  that  the 
County  Court  Judge  was  right  in  this  case,  and  that  his  decision  can 
not  be  disturbed.  We  are  satisfied  that  this  man  who  was  employed 
to  assist  a  slater  who  was  repairing  the  roof  of  the  house  was  so 
employed  for  the  purposes  of  the  employers'  business.  (His  Lord- 
ship referred  to  s.  4  of  the  Act  of  1897,  "work  ancillary  or  incidental 

/ 


104 


APPENDIX. 


to  business.")  The  premises  in  question  were  entirely  used  for  the 
purpose  of  the  trade  or  business  carried  on  therein,  the  upper  por- 
tion being  devoted  to  the  accommodation  of  the  assistants  who 
worked  in  the  shop.  It  is  of  importance  that  a  house  used  for  trade 
should  be  in  a  proper  state  of  repair,  and  business  could  not  be  car- 
ried on  unless  there  was  a  roof  over  the  premises.  It  is  merely  a 
matter  of  degree  whether  the  repairs  were  being  done  to  a  part  of 
the  roof  or  to  the  entire  roof. 

FiTZGiBBON,  L.  J.  The  evidence  of  the  manageress  shows  it 
was  part  of  her  duty  in  carrying  on  the  business  to  keep  the  premises 
in  proper  repair,  and  it  was  in  the  exercise  of  that  duty  that  she 
employed  this  man  to  assist  in  the  repairs.  Accordingly,  I  think 
there  was  evidence  to  support  the  finding  of  the  County  Court 
Judge. 

Holmes,  L.  J.,  gave  judgment  to  the  same  effect,  but  intimated 
that  he  confined  his  decision  strictly  to  the  particular  facts  of  the 
case.^ 


BARGEWELL  v.  DANIEL. 


Szvansea  County  Court,  1907.     123  Law  Times  Journal  487. 
Court  of  Appeal,  England,  1907.    98  Law  Times  Reports  257. 

Application  for  compensation  in  the  Swansea  County  Court. 

The  workman  was  a  laborer  who  sustained  injury  while  he  was 
engaged  in  whitewashing  some  houses  owned  by  the  employer,  the 
injury  being  a  broken  rib  caused  by  a  fall  from  a  ladder. 

The  facts  appear  from  the  judgment. 

His  Honor.  I  have  come  to  the  conclusion  that  I  must  take 
into  consideration  the  whole  facts  and  all  the  surrounding  cir- 
cumstances, because  it  is  rather  difficult  to  decide  the  question  on 
any  particular  test.  The  Legislature  itself  has  not  applied  an  ex- 
haustive definition  of  what  is  service,  but  on  the  whole  of  the  sur- 
rounding circumstances  I  have  come  to  the  conclusion  that  here 
there  was  a  service.  The  applicant  is  a  laborer,  and  Mrs.  Daniel 
herself  has  said  he  came  to  her  as  such.  It  is  admitted  and  is  clear 
on  the  cases  that  it  makes  no  dift'erence  whether  payment  is  by  the 
piece  or  by  day.  The  applicant  had  done  work  for  the  employer 
the  day  before  and  had  been  paid  by  time,  while  on  the  occasion  in 
question  he  was  given  money  to  get  materials  and  paid  by  the  piece. 
His  usual  wages  were  from  £i  to  £i  5s..  which  would  be  the  usual 
wages  of  a  laborer,  and  I  can  not  regard  him  as  anything  more  than 
a  workman  who  was  paid  by  the  piece.    In  this  case  he  was  to  pro- 

^Aj:cord:  Cotter  v.  Johnson,  45  Ir.  L.  T.  R.  259  (C.  A.  Ir.  1911),  5  B.  \V. 
C.  C.  568,  carpenter  employed  as  a  casual  laborer  to  repair  the  defendant's 
farm  buildings;  Gunther  v.  Knickerbocker  Co.,  Decisions  of  the  Industrial 
Commission  of  California,  Vol.  1,  No.  21,  p.  46  (1914),  man  called  in  from 
street  and  promised  twentj'-five  cents  for  moving  machinery  in  defendants' 
creamery;  Toynbs  V.  Bomford,  106  L.  T.  R.  823  (C.  A.  Eng.  1912),  5  B,  W.  C. 
C.  338 ;  and  compare  Rennie  v.  Reid,  note  2  to  Hill  v.  Begg,  p.  97. 


BARGEWELL  V.   DANIEL  IO5 

vide  his  own  materials,  and  that  fact  would  go  in  support  of  the 
view  that  he  was  a  contractor.  But  here  everything  must  be  taken 
into  consideration ;  that  he  was  doing  the  work  himself  and  was* 
letting  himself  oft  to  get  a  livelihood  by  doing  work  of  that  kind 
— and,  in  my  opinion,  that  substantially  was  his  occupation — that  he 
was  doing  work  for  people  and  being  paid  sometimes  by  the  hour 
and  sometimes  by  piece.  Therefore  I  hold  that  the  employment  was 
that  in  which  the  relationship  of  master  and  servant  subsisted,'  and 
I  award  io.y.  a  week. 

Award  in  favor  of  the  workman. 

From  this  decision  the  defendant  appealed. 

Albert  Parsons  and  /.  Davics-W illiams  for  the  appellant. — The 
plaintiff  was  not  employed  under  a  contract  of  service,  but  as  an 
independent  contractor,  and  not  as  a  workman.  But  if  that  is  not 
so,  his  em])loyment  was  of  a  casual  nature,  and  he  was  not  employed 
for  the  purpose  of  his  employer's  trade  or  business,  and,  therefore, 
under  sect.  13  of  the  Act  he  is  not  a  "workman"  within  the  meaning 
of  the  Act  of  1906.    He  is,  in  fact,  excluded  by  that  section. 

Clive  Lazvrence  for  the  respondent. 

Cozens-Hardy,  j\I.  R.  I  think  this  appeal  must  be  allowed.  I 
desire  to  express  no  opinion  at  all  on  the  first  point ;  but  the  learned 
County  Court  Judge  has  found  here  that  the  work  was  casual  work, 
and  the  employment  temporary  and  of  a  casual  nature.  Therefore, 
the  plaintiff  was  not  a  workman  within  the  Act  unless  he  was  em- 
ployed for  the  purposes  of  the  employer's  trade  or  business.  It  is 
not  suggested  the  defendant  was  carrying  on  a  trade.  Was  she 
carrying  on  a  business  in  which  the  plaintiff  could  be  employed  ?  It 
seems  to  me  she  was  not.  She  was  owner  of  a  few  houses  and  co- 
owner  of  some  other  houses,  of  which  she  collected  the  rents  and 
otherwise  managed,  'rtiis  casual  laborer  was  employed  to  white- 
wash some  of  those  houses.  The  learned  judge  appears  to  have 
treated  her  as  carrying  on  the  business  of  a  house  agent.     But  sect. 


^As  to  what  is  an  independent  contractor  as  distinguished  from  a  laborer 
or  workman  compare  Simmons  v.  faulds,  17  T.  L.  R.  352  (C.  A.  Kng.  1901 ),  3 
W.  C.  C.  169;  McGregor  v.  Dmiskcn,  36  Sc.  L.  R.  393  (Sc.  Ct.  Sess.  1899)  : 
Havdcn  v.  Dick,  5  Fraser  150  (Sc.  Ct.  Sess.  1902),  40  Sc.  L.  R.  95;  Chisholm 
V.  Walker  &  Co.,  1909  S.  C.  31  (Sc.  Ct.  Sess.),  46  Sc.  L.  R.  24,  2  B.  \V.  C.  C 
261;  Ryan  v.  Tippcrarv  Countv  Council,  46  Ir.  L.  T.  R.  69  (C.  A.  Ir.  1912)  ; 
Byrne  v.  Baltiiujlass  Rural  District  Council,  45  Ir.  L.  T.  R.  200  (C.  A.  Ir. 
1911),  5  B.  W.  C.  C.  566;  Bumham  &  Co.  v.  Ta\'lor,  1910,  S.  C.  705  (Sc.  Ct. 
Sess.),  3  B.  W.  C.  C.  569.  and  Vamplew  v.  Parkyatc  Iron  Co.,  L.  R.  1903,  1  K. 
B.  851  (C.  A.  Eng.),  5  W.  C.  C.  114,  with  Dunlop  v.  McCready,  2  Fraser  1027 
(Sc.  Ct.  Sess.  1900),  2,7  Sc.  L.  R.  779;  Bo\d  v.  Doharty,  1909  S.  C.  87  (Sc.  Ct. 
Sess.),  46  Sc.  L.  R.  71,  2  B.  W.  C.  C.  257;  Patcrson  v.  Lockhart,  7  Fraser  954 
(Sc.  Ct.  Sess.  1905),  42  Sc.  L.  R.  755,  and  Evans  v.  Penzi-yllt  etc.  Co..  18  T.  L. 
R.  58  (C.  A.  Eng.  1901),  in  which  last  case  tlie  facts  were  very  closely  similar 
to  Vamplew  v.  Parkgatc  Co.,  L.  R.  1903.  1  K.  B.  451  (C.  A.  Eng.)  5  \V.  C.  C. 
114.  See  C/u't'wr'j  Ccm-,  106  N.  E.  861  (1914).  And  compare  the  American 
cases  of  Skinner  v.  Stratton  Fire  Clay  Co..  McAllister  v.  Kat.  Fire  Proofing 
Co.,  and  In  re  McDonough,  Bulletin  Ind.  Com.  of  Ohio,  Vol.  1.  Xo.  21,  pp. 
103,  107  and  152;  Jacob  Rider  v.  Little  Co..  3  Bulletin  Ind.  Ace.  Board  of 
Mich.  27.  with  In  re  Johns  and  In  re  Monroe,  Bulletin  Ind.  Com.  of  Ohio, 
Vol.  1,  No.  21,  pp.  172  and  186.' 


I06  APPENDIX. 

13  of  the  Act  provides  that  a  workman  within  the  Act  does  not  in- 
clude a  person  whose  employment  is  of  a  casual  nature,  and  who 
is  employed  otherwise  than  for  the  purposes  of  the  employer's  trade 
or  business.  The  intention  was  that  the  Act  should  not  apply  in 
such  a  case  to  the  ordinary  owner  of  property  who  was  not  carry- 
ing on  any  trade  or  business.  On  that  short  point  it  seems  to  me 
that  this  appeal  must  be  allowed. 

MouLTON,  L.  J.  I  am  of  the  same  opinion.  I  think  the  interest 
which  the  defendant  had  in  this  property  was  such  that  for  the  pur- 
poses of  this  case  we  must  treat  her  as  having  all  the  rights  of  the 
owner  of  these  houses,  and  under  the  circumstances  of  this  case  I 
think  it  would  be  putting  an  unnatural  meaning  on  the  Act  to  say 
she  was  carrying  on  any  trade  or  business. 

Farwell,  L.  J.  I  agree.  The  fact  that  the  defendant  herself 
was  the  owner  of  these  houses  appears  to  me  to  exclude  the  notion 
that  in  doing  what  she  did  she  was  carrying  on  a  business. 


I 


I 


INDEX  TO  APPENDIX  B 

[References  are  to  Pages.] 
A 
ACCIDENT, 

See  "Personal  Injury  by  Accident." 

ARISING  OUT  OF  EMPLOYMENT, 

tortious  acts  of  fellow  workmen  or  third  parties, 

injuries  caused  by  "larking"  of  fellow  workmen,  44. 
injuries  caused  by  violence  of  third  parties,  46. 
injuries  caused  by  negligence  of  employes  of  other  employers 
engaged  on  same  work,  51. 
misconduct  of  injured  workman, 
disobedience  of  rules,  54. 
drunkenness,  49. 
choice  of  unnecessarily  dangerous  method  of  working  or  gomg 

to  or  from  work,  59,  62,  65. 
choice  of  unnecessarily  dangerous  method  of  working  for  the 

workman's  convenience,  62,  65. 
choice  of  unnecessarily  dangerous  method  of  working  to  expe- 
dite the  work,  54,  62. 
injuries  due  to  risks  not  peculiar  to  the  employment, 
heat,  cold  and  other  natural  causes,  65. 
perils  of -the  highway  or  of  travel,  70,  74,  75. 

CASUAL  EMPLOYMENT,  95,  97,  100. 

periodically  recurrent  employment,  101. 

employment  for  the  purposes  of  the  employer's  trade  or  business,  103, 
104. 

CAUSAL  RELATION  BETWEEN  ACCIDENT  AND  INJURY, 
See  "Is  Caused  to  a  Workman." 

D 
DISEASE, 

See  "Personal  Injury  by  Accident." 

DISOBEDIENCE  OF  ORDERS, 

as  putting  the  employe  out  of  the  ambit  or  course  of  his  employment, 

see  "In  the  Course  of  Employment." 
as  adding  a  new  risk  to  the  employment,  see  "Arising  Out  of  the  Em- 
ployment." 
as  serious  and  wilful  misconduct,  see  "Serious  and  Wilful  Miscon- 
duct." 

107 


I08  INDEX    TO    APPENDIX    B. 

[References  are  to  Pages.] 
I 

IN  THE  COURSE  OF  THE  EMPLOYMENT, 
when  does  employment  begin  and  end? 

employe  on  his  way  to  or  from  his  working  place, 

injured  on  the  premises  where  his  working  place  is  situ- 
ate, 20. 
injured  outside  such  premises,  26. 
on  vehicles  supplied  by  the  employer  to  convey  his  employes  to 

work,  31. 
sailors  injured  while  returning  to  their  ships,  27. 
interruption  of  employment, 

lunch  and  rest  intervals,  23. 

devotion  of  part  of  working  time  to  employe's  own  pur- 
poses, 33. 
acts  putting  an  employe  out  of  the  "ambit  of  his  employment," 
employe   doing   work   other   than   that   entrusted   to   him, 

35. 
employe  doing  work  prohibited  to  him,  35. 
employe  doing  work  at  a  place  other  than  that  designated 

as  the  scene  of  his  labor,  39. 
deviation   from  designated  field  of  work  for  purpose  of 
preserving  employer's  property  in  saving  him  from  loss 
or  liability,  36. 

"IS  CAUSED  TO  A  WORKMAN," 

causal  relation  between  the  accident  and  compensable  injury,  77. 


PERSONAL  INJURY  BY  ACCIDENT, 

by  accident,  7,  10,  16. 

enough  that  the  injury  was  not  foreseen  by  the  person  injured,  7. 

injur}'  intentionally  inflicted  by  third  persons,  10. 

injury  must  occur  at  some  specified  time,  16. 
disease, 

when  it  constitutes  "personal  injury,"  4. 

when  it  is  contracted  "by  accident,"  16. 

S 
SERIOUS  AND  WILFUL  MISCONDUCT,  80,  94. 

breach  of  statute  or  shop  rules  designed  to  secure  safe  work  condi- 
tions, 86. 
breach  of  unenforced  shop  rules,  89. 
drunkenness,  90. 

injured  man's  perception  of  the  probability  of  serious  consequences  of 
his  action,  93. 


TABLE  OF  CASES  TO  APPENDIX  B 


A. 

PAGE 

Armitage    v.    Lancashire    &    Yorkshire 
Ry.  Co.  44 

B. 

Bargewell   f.   Daniel  104 

Barnes  v.  Nunnery  Colliery  Co.  59 

Bist  V.  London  &  S.  W.  Ry.  Co.  86 

Blovelt   I'.    Sawyer  23 

Bryant  v.   Fissell  51 

C. 


D. 


Dewhurst  7'.  Mather 
Donovan's  Case 


E. 


Eke  '.   Hart-Dyke 


Frith   c.  Louisianian 


Clem  V.  Chalmers  Motor  Co.  93 

Clifford  V.  Joy  65 

Clover,  Clayton  &  Co.  v.  Hughes  7 


101 
31 


16 


49 


G. 


Ciane  t'.   Norton  Colliery  Co.  20 

( iilmour  v.   Dorman,  Long  &  Co.  26 

Greene  v.  Shaw  74 

H. 

Harding  t.  Brynddu  Colliery  Co.  39 

Hill  V.  Begg  95 


I. 


Ismay,  Imrie  5:  Co.   v.   Williamson  4 


Johnson  v.   Marshall,   Sons  &  Co.,  Ltd.     80 
Johnston      f.      Monasterevan      General 
Store  Co.  103 


F.\GE 

Kinghorn  v.  Guthrie  75 

Kitchenham  v.   S.   S.  Johannesburg  27 

Knight  V.  Bucknill  97 


Leach  v.  Oakley,  Street  &  Co.  27 

London,  &c.,  Co.  v.  Brown  36 

Losh  v.  Evans  &  Co.  35 

M. 

Malone  v.  Cayzer,  Irvine  &  Co.  77 

McDaid  v.  Steel  62 

McNicol's  Case  46 

N. 

Nekoosa-Edwards  Paper   Co.   v.   Indus- 
trial Commission  90 
Nickerson;  In  re,  94 


Pierce  v.  Provident  Clothing  &  Supply 

Co.  70 

Plumb  V.   Cobden   Flour   Mills  Co.  54 


Rayner  -'.   SHgh  Furniture  Co.  89 

Reed  v.  G.  W.  Ry.  Co.  3i 


Sabella  z:  Brazileiro 


100 


Trim    Joint    District    School    Board    i'. 
Kelly  10 

W. 

Warner  v.  Couchman 


109 


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